What to do when an Employee Discloses a Disability – Engaging in the Interactive Good Faith Process

by | Jan 9, 2024 | Employer Liability Prevention, Employment Law -- Employer, Employment Litigation |

Most employers are well aware that the Americans with Disabilities Act (ADA) and state laws like the Pennsylvania Human Relations Act (PHRA) require employers to try to accommodate disabled employees.  But how do employers determine what accommodation to make?  It is by engaging in a Good Faith Interactive Process with the employee.  In fact, employers, who employ more than 15 people, are legally required to engage in a “good faith interactive process” to determine and provide an accommodation, once an employee requests an accommodation due to a disability or pregnancy.

Though the interactive process is nothing new, many employers do not understand their obligations under the law or view the interactive process as a burden.  As a result, employers sometimes skip this step, particularly in situations where the accommodation requested may cause undue hardship on the employer or simply is not possible. But these are the scenarios in which it is most important to engage in the process, as failure to do so can cause liability that could easily have been avoided with a simple discussion.

 As such, once the duty to engage in the good faith interactive process is triggered by a request for an accommodation, an employer must (1) promptly meet with the employee and discuss and select appropriate disability-related accommodations and (2) provide selected accommodations so long as they don’t pose an “undue hardship” on the employer.

“Undue hardship” is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation.  For example, an accommodation that reduces workplace safety; infringes on employee rights; hurts employee benefits; or lowers job efficiency in other areas of the business would constitute an undue hardship.

However, merely determining that the accommodation requested would constitute an undue hardship does not end the process, because the interactive good faith process is ongoing.  As such, if a particular accommodation would constitute an undue hardship, the employer must try to identify another accommodation that would not pose such a hardship.  In other words, the employer cannot have one conversation with the employee, fail to engage further, and throw its hands up and say, “we tried.” That is not enough under the law.  For example, if an employee requests a transfer to a less strenuous position, the employer cannot provide the employee with a single position and fail to tell the employee about other positions that become available. Or, if an employee inquires about modified equipment that would allow them to do their job, the employer must actually take steps to find out what equipment is available for purchase from vendors.

The specific accommodations an employer must take upon request vary depending on the circumstances. While an employer is obligated to make a genuine effort to accommodate an employee’s request, not all accommodations are feasible. Employers are, however, expected to collaborate with their employees to find workable accommodations.