Initiating the Interactive Process for Accommodations Under the ADA: When the Onus is on the Employer – Technologist

Under the Americans with Disabilities Act (“ADA), employers are required to engage in an “interactive process to arrive at a suitable accommodation collaboratively with” an employee with a disability. Summer v. Altarum Institute, Corp., 740 F.3d 325, 331 n.4 (4th Cir. 2014). Commonly, the interactive process begins after an employee communicates to the employer about their disability and need for accommodation. In some cases, however, when a disability and a need for accommodations is apparent to the employer, the employer may be responsible for initiating an informal, interactive process with the employee to determine what accommodations are necessary.  Est. of Allen v. Baltimore Cnty., Md., No. 13-3075, 2017 WL 6508930, at *3 (D. Md. Dec. 20, 2017) (quoting 29 C.F.R. § 1630.2(o)(3)).

Where an employee “could have performed the essential duties of his position with reasonable accommodations the [employer] failed to consider or offer to him, and [the employee] suffered an adverse employment action as a result of the [employer]’s failure to make those reasonable accommodations,” the employer violates the ADA. Id. at *6; see also Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317–18 (3d Cir. 1999). To help realize the intention of the ADA to ensure the “right to fully participate in all aspects of society” and “equality of opportunity, full participation, independent living, and economic self-sufficiency” for people with disabilities, 42 U.S.C.A. § 12101 (West), and to protect themselves from litigation, employers have an obligation to take reasonable steps and act in good faith to identify instances where accommodations may be necessary, and to engage in an interactive process to identify what those accommodations are.

When Employers Should Initiate the Interactive Process

In some cases, the burden is on the employer to request the information it needs to provide reasonable accommodations. Courts recognize that there are many reasons that employees with disabilities may not ask for accommodations outright. Employees with disabilities, “especially those with psychiatric disabilities, may have good reasons for not wanting to reveal unnecessarily every detail of their medical records because much of the information may be irrelevant to identifying and justifying accommodations, could be embarrassing, and might actually exacerbate workplace prejudice.” Taylor, 184 F.3d at 315. In such cases, the employee “may have difficulty effectively relaying medical information about his or her condition, particularly when the symptoms are flaring and reasonable accommodations are needed.” Id. (citation omitted).

To be sure, “[a]n employer that has no knowledge of an employee’s disability cannot be held liable for not accommodating the employee.” Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996). But employers can be responsible for initiating the interactive process to provide accommodations even when the disability hasn’t been disclosed if there is sufficient information for an employer to be aware that an employee might have a disability. Allen, 2017 WL 6508930 at *3 (quoting 29 C.F.R. § 1630.2(o)(3)). “What matters under the ADA are not formalisms about the manner of the request, but whether the employee or a representative for the employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.” Taylor, 184 F.3d at 313; see also Fleetwood v. Harford Sys. Inc., 380 F. Supp. 2d 688, 701 (D. Md. 2005) (stating that the employer becoming aware of an employee’s dyslexia during a 90–day performance evaluation was sufficient to trigger protections of the ADA).

Nor does an employee have to tell their employer directly of their disability. For example, in a situation where an employee’s parent is often involved in advocacy for the employee—such as managing their schedule or assisting with documents—it may be an appropriate accommodation to offer to involve the parent if any issues arise. See Plush v. ServTech Inc., No. 21-2013, 2022 WL 4017329, at *1 (D. Md. Sept. 2, 2022) (finding a mother’s involvement with the employer of her autistic son was grounds for knowledge that the employee had a disability). Involvement with a non-profit that provides job placement or coaching services also serves as an indicator that an employee may need accommodations. Id. An employer may also be put on notice of a psychiatric or medical disability if the employee experiences symptoms while at work and has to be transported to a hospital. Taylor, 184 F.3d at 303. Another indication of an employee’s need for accommodations may arise during a disciplinary process: an employee’s inability to appreciate the seriousness of their actions after successive interventions or disciplinary meetings can be sufficient indicia to put the employer on notice that the employee needs accommodations. Id. at 314 (finding that it should not “have come as a surprise that [plaintiff] would want some accommodations, particularly as the successive disciplinary meetings began to mount for an employee who had previously performed very well.”). In such cases, “the initiation of the interactive process [is] [the employer’s] duty.” Plush, 2022 WL 4017329 at *1.

Notice of a disability or a request for an accommodation can also come from “a family member, friend, health professional, or other representative.” 2 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at 20–21; see also Taylor, 184 F.3d at 303 (finding that notice from an employee’s son of the employee’s disability was sufficient). Nor do the requests have to be formal—they do not need to be in writing and may use “plain English” instead of specific references to the ADA or “reasonable accommodation.” 2 EEOC Compliance Manual at 19-21.

Once a need for accommodations becomes apparent, if more information is warranted to justify or create an accommodation, it is the responsibility of the employer to ask for it. Taylor, 184 F.3d at 314. In some cases, courts may fault the employer for its lack of awareness of an employee’s disability or need for accommodations if simply engaging with the interactive process would have uncovered this information. Allen, 2017 WL 6508930 at *3 (“[I]f the County was unaware that Allen was recovering from his sarcoidosis flare-up, or that reasonable accommodations would have allowed Allen to perform the essential functions of his job, it is because the County failed to engage with Allen in an interactive process.”). As such, the employer’s initiation of the interactive process is imperative in situations to ensure that any adverse action taken is not in response to a lack of accommodations that would otherwise have ameliorated the employee’s issues.

Engaging in the Interactive Process

Once an employer is aware of an employee’s disability, it is not excused for failing to accommodate that employee simply because the employee failed to ask for a specific accommodation. “The employer has at least some responsibility in determining the necessary accommodation.” Beck, 75 F.3d at 1135. “[P]roperly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say ‘I want reasonable accommodation,’ particularly when the employee has a mental illness.” Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1286 (7th Cir. 1996). Employers may not “sit back passively” in the face of a known need for an accommodation, as doing so “unfairly exploits the employee’s comparative lack of information about what accommodations the employer might allow.” Taylor, 184 F.3d at 315–16. Instead, an employer “has to meet the employee half-way,” Bultemeyer, 100 F.3d at 1285, to determine “the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); 29 C.F.R. Pt. 1630, App. § 1630.9 at 35.

If and when such issues are litigated, an employer must show that it engaged in the interactive process to accommodate their employee in good faith. See Bultemeyer, 100 F.3d at 1285 (quoting Beck, 75 F.3d at 1135). Litigation can be avoided by exhibiting good faith in the first place. Good faith can be shown “in a number of ways, such as taking steps like the following: meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered employee’s request, and offer and discuss available alternatives when the request is too burdensome.” Taylor, 184 F.3d at 317. Because the communication process may be more difficult for people with certain disabilities—such as mental illnesses—“[i]t is crucial that the employer be aware of the difficulties, and ‘help the other party determine what specific accommodations are necessary.’” Bultemeyer, 100 F.3d at 1285 (quoting Beck, 75 F.3d at 1135).

Accommodating Needs Outside of Essential Functions

It is not uncommon for employees with developmental or intellectual disabilities to perform exceedingly well at the task they are assigned to do, but to struggle when it comes to understanding the nuances of working with colleagues and social or professional etiquette. See, e.g., Taylor, 184 F.3d at 310 (stating that an employer’s claim that an employee’s problems at work were not due to mental illness, but her “peculiar personality traits,” was questionable considering her high performance prior to the onset of her disability). When this occurs, a reasonable accommodation might be involving a parent or trusted advocate of the employee, a job coach, or providing clear language on the types of boundaries that may have been crossed. This type of coaching or outreach may be a necessary accommodation, even if it is outside the typical practices of the employer. Beck, 75 F.3d at 1135 (quoting Vande Zande, 44 F.3d at 543) (“The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work.”). Often, issues can be resolved if the employer “merely ha[s] the patience to sit down with [the employee] and ask him what the problem [is].” Bultemeyer, 100 F.3d at 1285. Where an employer has some indication that the employee has a disability, it must take some responsibility of inquiring into why the issues are occurring and how it could support the employee to remedy such issues. Id.

This is particularly true where the issue the employee is having cannot be said to be related to “an essential function” of the job. See, e.g., Fleetwood, 380 F. Supp. at 69. For example, in Fleetwood, the plaintiff was an employee with dyslexia that had trouble filling out timecards. Id. The employer argued that filling out timecards was an essential function of the plaintiff’s position because “timecards were used by the accounting department to make sure that [ ] customers were billed properly for each project.” Id. The Court, however, found that because the job’s description did not include entering timecards—or even “reading, writing and performing simple math,”—as an essential duty, a genuine issue of fact existed. Id. If certain interpersonal skills are not listed as an essential skill, but an employee is being disciplined for interpersonal dynamics unrelated to their job, the employer should consider what in fact is underlying the issue and explore the possibility that reasonable accommodations can be made to allow the employee to continue their tenure at the company.

Conclusion     The ADA does not mandate that employers be responsible for identifying or diagnosing the disabilities of their employees, but it does suggest that they be sensitive to information that might indicate accommodations are necessary. Maryland courts have made clear that they expect employers to play a considerable role in engaging in—or even initiating—the interactive process for accommodations where an employee’s work performance may be the result of a disability. Approaching situations with this awareness, patience, and sensitivity will not only circumvent discrimination lawsuits for the employer, but ensure that people with disabilities have “the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is [ ] famous.” 42 U.S.C.A. § 12101(a)(8).