The interactive process needs employers and employees to be working in good faith.
Thank you for your recent answers to my questions about when I am supposed to initiate the ADA interactive process with my employee who was having performance and productions process. Now, I have some questions about the other end of the process.
The employee started to miss work and at one point, decided not to come in at all, saying they needed time off. We initiated the interactive process by asking them to give us the following:
- A set of possible accommodations
- A medical certification form for her doctor to fill out to determine what limitations exist and the medical support needed for any accommodations, including the length of time for any necessary leave of absence
This would help us evaluate whether any requested accommodations would create an undue hardship for us. Additionally, we proposed some accommodations given the employee’s description of the medical conditions.
We asked the employee to provide this information to us in 10 business days. On the letter, we also indicated that if the employee didn’t get this information to us, we may not be able to provide any accommodations and perhaps even terminate the relationship.
It has now been almost three weeks past the original deadline, and we have not seen any documents returned or even any information relating to the progress, despite many calls, emails, and letters to ask about the status of the employee’s response. The most we have gotten from our efforts was a single email in response saying, “Ok, thanks, I’ll get on it.” This message was received two weeks after the original deadline.
We are very frustrated and desperately need someone to work in her position. Please let us know our options.
You are encountering a very common situation that many employers face after they start the interactive process with an employee.
Of course, the ADA is very clear that employers carry on the interactive process in good faith to reach an understanding of what accommodations can be provided to enable the employee to perform their job duties.
Many employers are not aware that the same obligation to engage in the process in good faith is also imposed on the employee. The admonition you provided in the letter to the employee is accurate, and given their failure to interact with you, the employer may deny any accommodations, and, in many circumstances, terminate the employee.
The employee’s obligation to interact with their employer in good faith has been reviewed and ruled on by several Federal courts. Many of these cases start when the employer terminates the employee for failure to respond or provide information in response to the employer’s efforts to interact and work with the employee to evaluate and provide a reasonable accommodation. These former employees, ironically, then sue for the employer’s alleged failure to carry out their duty to interact with the employee.
You are not mistaken to conclude that this situation is a good illustration of real life’s very accurate maxim: No good deed goes unpunished.
In evaluating these cases, the courts hold that the employee’s failure to engage in the interactive process can defeat the employee’s lawsuit. To quote one court evaluating this situation:
…the interactive process requires communication and good-faith exploration of possible accommodations between employer and employee and neither side can delay or obstruct the process.
Following these concepts, if an employee fails to return their requested medical certification, refuses to suggest or even discuss accommodations that they may need, and, as in this situation, just refuses to communicate at all except for delaying the interaction, you may be justified in ending the employment relationship, especially when your staffing needs are severely compromised by the employee’s failure to respond in good faith.
Of course, this decision should be made only after evaluating the risks termination may bring. This would include making every effort to go overboard in attempting to make documented contact (including more emails and letters) to get the employee to respond meaningfully, and spell out, once again, the consequences of their failure to interact with you, as well as a thorough analysis of all risk factors that termination might raise, such as protected statuses or activities. Discussion of these risks should also be analyzed by experienced employment counsel for their opinion.
If these efforts still result in no meaningful response, the risk of litigation may not go away, but the likelihood of that litigation being brought or being successful is considerably reduced.
One commentator best summarized the judicial guidance concerning the employee’s duty:
The responsibility of employers to engage in the interactive process in good faith is frequently the central focus in ADA failure to accommodate claims. However, the courts are clear that employees have a similar obligation. Those employees who abuse or frustrate this process, delay response to legitimate requests by the employers, including delaying or refusing to undergo medical examinations and provide certifications and fail to avail themselves of, or even consider, any offered accommodations are unlikely to find courts sympathetic.
Consequently, employers should thoughtfully participate in the interactive process and document all steps taken with the expectation that even if the process is ultimately unsuccessful, an employer’s good faith efforts may often be sufficient to defeat any subsequent lawsuit for failure to accommodate under the ADA.
About the Author
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation.
In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.
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