One of the most important duties that is imposed by anti-disability discrimination laws is the obligation to accommodate a disabled employee in performing the essential job duties of a desired employment position. As part of that obligation, both federal and New Jersey state law impose a duty upon the employer to engage in an interactive dialogue process after an employee requests an accommodation as part of the required effort to work towards finding a suitable accommodation. One of the areas where employers get in the most trouble in complying with anti-disability discrimination requirements is in failing to adequately engage in this required interactive process.
Under the law, the interactive process is deemed to be a two-way street where both the employer and the employee bear a good faith duty to attempt to work constructively in an effort to either find a potential accommodation or determine that no such accommodation is available in the given circumstances. The reason that failing to follow the process can get employers in so much legal trouble is because it is an easy employment law requirement for judges to know and understand and in almost every conference I have had with a judge one of the first questions that I get asked in these cases is was an interactive process undertaken and how did its outcome affect the dispute at hand.
So, what does the interactive process require? It requires active dialogue and the exchange of possible ideas to resolve an accommodation request. While many employers would love to deny an accommodation request summarily, employers are wise to take advantage of the opportunity of utilizing the process to gain meaningful information from the employee, such as medical information and possible alternative accommodation options, that may allow for a better resolution of the request. Establishing as an employer that you made every effort to work with a disabled employee to find a workplace accommodation serves to buttress the defense against any discrimination lawsuit for failing to provide those requested accommodations.
Along with actually engaging in the interactive process, documentation of those efforts is also critical to establishing needed defenses if a challenge is raised to process compliance in any discrimination case. Where possible, exchange accommodations ideas and requests for information through writings, such as emails, with the requesting employee, so you have that needed paper trail of compliance regarding your communications through this process. If the interactive process is more verbally oriented, always make sure to follow up in some writing what was addressed as part of the process, so you have confirmatory documentation of what was discussed and how issues were ultimately addressed. I am also a big fan of using some form of written documentation in describing the outcome of the process, whether this is a denial or acceptance of an accommodation request. When there is a denial, the written documentation should explain why. When any type of accommodation is granted, there should likewise be documentation outlining the scope of the agreed upon accommodation so there is no confusion regarding how job duties have been accommodated. In both situations, this is again effective use of documentation to set up possible defenses should any legal issues arise out of the interactive process.
Therefore, in sum, always remember the importance of the interactive process whenever a workplace accommodation request is raised by an employee in your workplace. Engage in that process in good faith and always document your efforts as part of the process to establish a written history of your efforts in case any subsequent litigation ensues. You will be happy that you did.
