Under the Americans with Disabilities Act (ADA), an interactive process is triggered when an employee requests a work-related accommodation for a disability. The employer and the employee must engage in the interactive process in good faith.
The purpose of this process is to identify reasonable accommodations that will enable an otherwise qualified employee to perform their essential job functions. An employer is obligated to provide a reasonable accommodation unless doing so would impose an undue hardship on the business or pose a direct threat to the health or safety of the employee or others. Absent such defenses, an employer’s failure to provide reasonable accommodation is sufficient for an actionable ADA claim in the 10th Circuit (which includes Colorado, New Mexico, Utah, and Wyoming). Even an unreasonable delay in providing accommodation can be enough to violate the ADA.
In the 10th Circuit, an adverse employment action is not a required element of a failure-to-accommodate claim under the ADA. The 10th Circuit’s standard for failure-to-accommodate claims, as set forth in Lincoln v. BNSF Ry. Co., requires a plaintiff to show that they (1) are disabled; (2) are otherwise qualified; and (3) they requested a plausibly reasonable accommodation. If a plaintiff can show each element, the burden shifts to the employer to rebut those elements or to establish an affirmative defense, such as undue hardship.
Takeaways for Employers
Employers should promptly and diligently engage in the interactive process so there is no unreasonable delay in providing reasonable accommodation. According to the 10th Circuit in Selenke v. Medical Imaging of Colorado, when there is a claim of unreasonable delay, the following factors are considered: the length of delay, the reasons for delay, whether the employer offered alternative accommodation while considering the employee’s requested accommodation, and whether the employer acted in good faith.
To mitigate the risk of a failure-to-accommodate claim, employers should train their supervisors and managers to be alert for accommodation requests. There is no requirement that certain language be used by an individual seeking an accommodation, such as referring to the ADA or using the term “accommodation.” All an employee needs to do is let the employer know that a change is needed because of some physical or mental impairment that affects the performance of their job. Once the employee gives this notice, managers and supervisors should promptly alert human resources so there is no delay in the interactive process.
Gayle Moser is an attorney for Employers Council.