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  • Writer's pictureDavid Manes

Does an Employee have a Duty to engage in the Interactive Process under the ADA?

The Americans with Disabilities Act (“ADA”) provides protection for “disabled individuals” who are currently employed or seeking employment. If an individual is disabled under the ADA, Employers are required to reasonably accommodate the individual’s disability by engaging in the “interactive process.” Failure for an Employer to engage in the interactive process of providing an accommodation is potential for an employment discrimination lawsuit. However, it is important to note that an Employee also has a duty to engage in the interactive process. Failure for an Employee to engage in the interactive process may result in his/her case being dismissed.

Before an individual can ask for an accommodation, he/she must prove they are disabled under the ADA. Once an individual establishes he/she is disabled under the ADA, he/she can engage in the interactive process with the Employer to request an accommodation.

If the disabled individual makes a request for accommodation, it is unlawful for their Employer not to make reasonable accommodations unless the Employer can prove that the accommodation would impose an undue hardship on the operation of its business. Stultz, 835 A.2d 754, 761 (citing Taylor v. Phoenixville School Dist., 184 F.3d 296, 311 (3rd Cir. 1999)). In other words, once the Employer is put on notice that an individual is disabled and requires an accommodation, the Employer has a duty to participate in the interactive process of trying to accommodate the individual and his/her disability.

While the Employer has a duty to engage in the interactive process, so does the Employee. If the Employer is engaging in the interactive process and the Employee is not cooperating, then the Employee is not acting in good faith and may not be able to bring a disability discrimination lawsuit against their Employer if an accommodation is not provided. In Taylor v. Phoenixville School, 184 F.3d 296, 312 (3d. Cir. 1999), there was an Employee diagnosed with a mental disorder who sought to return to work from extended disability leave. The Employer required the Employee to take a physical before returning to work. Id. The Employee refused to take the physical and refused to return to work. Id. The Court held that:

An employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer … [B]oth parties bear responsibility for determining what accommodation is necessary … “[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.”

Id. In other words, because the Employee did not get the physical exam or return to work, the Court found that he was not acting in good faith in trying to accommodate his disability. Therefore, the Employer’s refusal to accommodate the Employee was not discriminatory.

For a simpler example, let’s say an Employee has a disability and an Employer offers an accommodation in the form of a light-duty position. If the Employee simply refuses the job, fails to give an explanation as to why the accommodation is not reasonable and stops showing up to work, he/she is not acting in good faith and has failed to engage in the interactive process. If the Employer subsequently terminates the Employee, the Employee will have a difficult time proving disability discrimination.

It is important to remember that engaging in the interactive process is not one-sided. It is not the Employer’s sole responsibility to offer accommodations. It is also the Employee’s responsibility to actively engage in the process of trying to find an appropriate accommodation for his/her disability.

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