The Americans with Disabilities Act (ADA) increasingly poses compliance challenges and attracts significant attention from plaintiffs’ lawyers and the Equal Employment Opportunity Commission. The resulting litigation illustrates that a failure to maintain effective reasonable accommodation policies and adequately engage in the “interactive process” makes for costly litigation and exposure.

To comply with the ADA and combat the potential for disruptive and expensive litigation, employers must engage in an individualized analysis of each request for accommodation by an employee with a disability and document each step of the way. These actions are even more important since the ADA Amendments Act and implementing regulations went into effect.

A much greater proportion of the workforce is now considered “disabled” and thus entitled to reasonable accommodation under the law. What does this mean?

Litigation now focuses on determining when and whether an accommodation is reasonable and required, rather than determining whether the employee is “disabled.”

Long term and post-acute care employers are not strangers to the many challenges presented by accommodation obligations. Given the increase in requests for accommodation and lawsuits associated with these issues, employers are wise to review and ensure their policies and practices are compliant with the ADA before faced with litigation.

What exactly is a reasonable accommodation? The regulations describe it as a change in the work environment or in the way a job is customarily done that gives an individual with a disability equal employment opportunities.

Reasonable accommodations generally fall into one of three categories that require modifications or adjustments: the job application process, the work environment or the way a position is customarily performed, and enabling an employee with disabilities to enjoy the same benefits and privileges of employment as other employees.

An employer can only determine whether such accommodations are required by conducting an interactive, individualized analysis of the circumstances. The results of these efforts should reflect either a resolution of the situation or proof that the employer made good-faith efforts to accommodate an individual.

For example, when a hospital’s explanation for terminating an employee turns on the employee’s unreasonable behavior during the accommodation process, it will be critical to have the documentation showing the employee’s behavior.

At the outset, an employer’s duty to accommodate an employee with disabilities generally is triggered when an employee tells the employer that he or she needs an adjustment or change at work because of a disability.

Upon receiving the request, or otherwise knowing the employee needs an accommodation, an employer should engage in an interactive process to determine the appropriate accommodation.

Steps in the interactive process include:

1.) Identifying the job’s essential functions;

2.) Consulting with the employee and/or employee’s physician to determine the specific physical or mental limitations at issue;

3.) Consulting with the employee and identifying potential accommodations, including assessing each accommodation’s effectiveness;

4.) Selecting the accommodation that best serves the needs of the employer and the

employee.

To engage in these steps effectively, employers should have processes and paperwork in place that allow them to easily monitor and document the dialogue between the company and employee.

These include having an accommodation request form for employees to complete and communicating in writing to the employee all offers or explanations associated with any and all accommodations.

For example, this might include documentation reflecting the employer and employee’s agreement on the job’s essential functions.

The mere failure to engage in, or to continue to engage in, the interactive process generally will not violate the ADA if no reasonable accommodation exists. Nevertheless, an employer should engage in the process because a good faith effort to accommodate is a defense to certain damages.

Further, when accommodation is possible and the process breaks down, courts will determine who is responsible for the breakdown.

These challenges presented themselves in Zombeck v. Friendship Ridge, in which a nurse aide sued her long term care facility employer for failing to provide a reasonable accommodation. The employee requested that she be allowed to use a mechanical lift to transfer residents who could not bear their own weight.

However, not only did the parties disagree about whether lifting was an essential function, the employer did not discuss the request with the employee and appeared to reject it out of hand.

Based on these facts, the court denied the employer’s request for summary dismissal, finding that a jury would need to hear the case.

Once an employer has notice of the need for an accommodation, it should first consider those accommodations that allow the employee to remain in the same job, which may include a leave of absence.

If none are possible, then reassignment to another position may be an option. Although a variety of potential accommodations exist, common examples include: modified work schedules; reduced work schedules, such as a temporary part-time schedule; equipment that enables an employee to do his or her job; and leaves of absence.

As to leaves, application of an inflexible (bright-line) limit on leave may violate the ADA. If granting more leave beyond a company’s established limit would not create an “undue hardship” and would enable the employee to return to performing the job’s essential functions, an employer may have to permit the additional time off.

Lastly, transfers are yet another form of accommodation but are a last resort. In most jurisdictions, employees with disabilities should not be required to compete for the new position as long as they are qualified for it.

Certain accommodations are not reasonable as a matter of law, such as those requiring the elimination of essential job functions or quantitative standards. Employers may hold employees to the same performance and conduct standards and are not required to rescind discipline as a reasonable accommodation in most circumstances, even if the misconduct is caused by the employee’s disability.

If misconduct does not result in termination and the employee claims his or her disability caused the violation, reasonable accommodations to assist the employee to meet the conduct standard in the future may be appropriate.

Of course, accommodations are not required if they impose undue hardships on employers; that is, if they are “excessively costly, extensive, substantial or disruptive,” would “fundamentally alter the nature or operation of the business,” or make the employee’s co-workers have to work harder or longer.

Unless an employer’s company is extremely small, it generally will not be able to establish a financial undue hardship.

ADA accommodation issues arise frequently in the workplace, and there is no standard, one-size-fits-all solution for managing them. Successfully managing these situations includes maintaining lawful accommodation policies, having guidelines and documentation in place for the interactive process, engaging effectively in that process, and training managers to recognize and report accommodation requests.

As to training, managers may be the first to face an accommodation request, and the employee with disabilities might not use the term “reasonable accommodation” in his or her request. Given this dynamic, employers should educate managers to recognize potential issues and confer with the company’s human resources experts or legal advisors when such situations arise.