Question: I have an employee who brought in a doctor’s note that says she should work from home any time her anxiety flares up. Most of her job can’t be done remotely, and I don’t think she’ll focus at home. Can I tell her “no”?
Answer: Even if the accommodation isn’t feasible, you can’t say “no” until you go through each step of the interactive process, which involves a lot more than a doctor’s note and determination that it won’t work. Under the federal Americans with Disabilities Act (ADA) and many state disability discrimination laws, the interactive process is a fact-finding and problem-solving mission that may include several people, conversations, resources, and ideas.
We’re focusing on the ADA in this Q&A. Keep in mind, though, that if a worker needs an accommodation due to pregnancy, childbirth, or related medical conditions, the Pregnant Workers Fairness Act (PWFA) adopts many of the ADA principles on the interactive process (with important differences on medical certification and elimination of essential functions, as we previously reported).
Most courts and regulators regard the interactive process as a journey that’s more important than its destination. For this reason, let’s review the most common mistakes made in the ADA interactive process:
- Rushing to solutions: Often an HR manager or supervisor will directly or indirectly hear about a desired accommodation and jump right into problem-solving without consulting the employee. This is a big mistake, even if well-intentioned. The law expects you to fully involve the employee by engaging them in a series of conversations. If you leap from A to Z, thinking “we already know what will work and what won’t work,” you’ll spend more time on the back end having to fix misunderstandings with the employee, revise accommodations that aren’t working, or consult with legal counsel to defend your decisions.
- Not asking the employee what they want: If you get a note supporting remote work or if an employee tells you, “My doctor says I need to work from home when I become overwhelmed,” you still need to know exactly what the employee wants. Don’t assume the accommodation based on history, a doctor’s note, or a vague request. Instead, ask clearly and directly, “What exactly do you need from us?” Follow-up questions include: “When do you need this?,” “For how long?,” “How often?,” “What parts of your job are you having difficulty with?,” “Is there anything else that may help?,” and “How will you be able to do all your job duties with this accommodation?”
- Collecting information with a “prove it” mindset: After you fully understand what the employee wants and why, your job is to collect information. You may have a valid concern that the employee doesn’t really have a disability, but keep in mind that a lot of physical and mental conditions are disabilities under state and federal law. A tailored cover letter and questionnaire to the doctor can ask about conditions affecting work, which will give you enough information to know if disability laws apply and what work accommodations are appropriate from a doctor’s perspective. Your goal is to figure out what this employee needs, if anything, to do all of their essential job duties successfully, not figure out if they’re lying.
- Assuming that the accommodation requested is the only one on the table: If your employee asks to work from home and the doctor supports it, this doesn’t mean you have to approve the request if it’s unduly burdensome, it poses a direct threat to health or safety, or the employee can’t successfully complete their job duties. As part of the information-gathering phase, get suggestions from multiple managers who have creative ideas or historical knowledge about how the job duties, equipment, or processes can be altered to achieve the same outcome. Also collect creative accommodation ideas from credible online resources, like the Job Accommodation Network (JAN). Just one of many online resources, JAN gives a comprehensive list of products, services, and strategies to accommodate each type of disability, all of which could be alternate accommodation ideas that work for both you and the employee. Instead of working from home, how about a mentor? Or providing directions or feedback in an alternate way? Or headphones or a quiet space to work?
- Setting and forgetting the accommodation: Once the employee, HR, and manager agree on an accommodation, it often runs on autopilot until something goes wrong, like declining performance. Instead, have the manager schedule periodic check-ins to see if the accommodation is no longer needed or should be changed. For example, an employee working from home with mediocre performance may have new medication that allows them to better handle a busy office environment where they can be mentored. If you let the accommodation run without end, it signals that the remote work is permanent and mediocre performance is acceptable. Finally, don’t forget that the interactive process itself, as well as periodic check-ins and any performance issues that crop up during this period, need to be documented and kept in the employee’s personnel file. If you don’t save your work, it will be difficult to defend yourself against a claim later.
The interactive accommodation process isn’t as daunting as it seems when you focus on open communication, creative thinking, and ongoing, documented check-ins. Members also have Vigilant resources to help, including our Legal Guide, ADA: Reasonable Accommodation and the Interactive Process, and our Model Form, ADA: Letter to Health Care Provider. For specific advice, members can contact their Vigilant Law Group employment attorney.
If you’re not a member yet, and need help this topic and other complex employment laws, connect with us to learn about how we can help.
