September 13, 2014 rhanafi

Failure to Engage in the Interactive Process

If you are a disabled worker, one of the first things you and your employer need to do is engage in the interactive process. This is a good faith dialogue between worker and employer about the employee’s disability. The goal of this statutorily mandated conversation is determining whether the employee can perform the essential functions of their job with or without an accommodation. In other words, can you and your employer figure out a way for you to either keep working, or just keep your job, with your present physical or mental condition. This is an ongoing responsibility. If an employee is accommodated but subsequently has a change in his or her circumstances, the interactive process should continue.

As simple as the above sounds, this claim pops up in almost every disability discrimination action. A frequent source of disability claims arise from situations where the employer either simply decides an employee’s fate without their input, or just ignores an employee or their doctor’s input. Sometimes, an overly bureaucratic layer creates mistakes that lead to an inadequate resolution, or outright dismissal of an otherwise qualified employee. All of these situations encompass a failure to engage in the interactive process.

Currently, there is a debate in the courts as to whether an employer is liable for failure to engage in the interactive process if there was no actual accommodation possible. For instance, if an employee suffers from a severely debilitating condition that would permanently limit his ability to perform a certain job, is the employer liable for simply firing the employee without even attempting to investigate if any accommodation was possible?

This is a constantly evolving area of the law that I have litigated many times. Contact me if you are either thinking about beginning this process, are in the midst of it, or have gone through it already and something has gone wrong. The earlier you get advice, the better.