By Courtney Elizabeth Endwright, Betz + Blevins
Under the Americans with Disabilities Act, employers are only required to reasonably accommodate known physical or mental limitations of an employee with a disability. It would be otherwise unfair to expect an employer to accommodate disabilities of which it is wholly unaware. Thus, generally, the employee with a disability is required to inform the employer that an accommodation is needed. At that point, an employer and an employee are required to discuss and determine what accommodations are possible—i.e., engage in an “interactive process” as defined by 29 C.F.R. § 1630.2(o)(3).
When the requirement to engage in the interactive process is triggered has been a matter of debate between employers and employees over the past several years. Before 2008, it was unclear under Seventh Circuit case law whether employees always had an affirmative duty to actually request an accommodation before an employer was obligated to take action. For instance, one line of cases held that an employer is obligated to begin an interactive process when “an employee tells his employer that he has a disability.” Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 934 (7th Cir. 1995). Another line of Seventh Circuit cases found that the obligations to engage in the interactive process did not begin until (1) the employer knew of an employee’s disability; and (2) the employee requested a reasonable accommodation. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996).
However, the 2008 ADA Amendments Act, as well as, recent case law have clarified this issue. Generally, the ADA Amendments Act broadened the definition of what constituted a disability and expanded the ADA’s scope “in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.” 29 CFR § 1630.1; Snyder v. Livingston, 2012 U.S. Dist. LEXIS 59193, at *23–24 (N.D. Ind. Apr. 27, 2012). Specifically, the Appendix to the Code of Federal Regulations under 29 C.F.R. § 1630 provides that “[i]f an employee with a known disability is having difficulty performing his or her job, an employer may inquire whether the employee is in need of a reasonable accommodation.” The Seventh Circuit has adopted this position.
In Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. Ind. 2014), the Seventh Circuit recently considered this issue in a case where an employee was terminated for sleeping on the job even though she had provided a doctor’s note requesting that these symptoms be excused at work. The Seventh Circuit determined that “[o]nce [an employer] received notice of [the employee’s] disability . . . , it was incumbent upon them to determine, by engaging in an interactive process with [the employee], whether a reasonable accommodation could be made.”
The district courts in Indiana have adopted the principles from Spurling. E.g., Ellis v. Americold Logistics, LLC, No. 1:15-cv-00306-JMS-MJD, 2016 U.S. Dist. LEXIS 92863, at *33–34 (S.D. Ind. July 18, 2016); Mazzacone v. Tyson Fresh Meats, Inc., No. 3:13-CV-897-TLS, 2016 U.S. Dist. LEXIS 92700, at *12 (N.D. Ind. July 18, 2016). For instance, where an employer claimed that its duty to engage in the interactive process “was never triggered because [the employee] never expressly requested an accommodation,” the Honorable Sarah Evans Barker rejected this argument, concluding it did not “accurately capture the essence of Seventh Circuit case law on the subject.” Rednour v. Wayne Twp., 51 F. Supp. 3d 799, 826 (S.D. Ind. 2014) (emphasis added). Instead, under Spurling, “the key inquiry is whether the employer was placed on notice that the employee had a disability that needed accommodating, not necessarily whether that notice came about from an explicit accommodation request from the employee.” Id. at 827.
As a result, no magic words are necessary to trigger the interactive process. Matland v. Loyola Univ. of Chi., 2013 U.S. Dist. LEXIS 155261, at *13 (N.D. Ill. Oct. 28, 2013). It is sufficient, for example, for an employee to simply state “‘I want to keep working for you—do you have any suggestions?’” Mazzacone, No. 3:13-CV-897-TLS, 2016 U.S. Dist. LEXIS 92700, at *12 (citing Miller v. Ill. Dep't of Corr., 107 F.3d 483, 487 (7th Cir. 1997)). See also Rednour, 51 F. Supp. 3d at 827 n.37. Alternatively, an employee can merely “propose some accommodation, even if that particular accommodation is unreasonable.” Brown v. Dunbar Armored, Inc., 2009 U.S. Dist. LEXIS 115572, at *10 (D.N.J. Dec. 10, 2009).
Most significantly, where an employee’s need for an accommodation for a disability is obvious, e.g., where an employee has a mental illness, it may be incumbent on the employer to initiate the interactive process. Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1286 (7th Cir. 1996). See also Jovanovic v. In-Sink-Erator, 201 F.3d 894, 899 (7th Cir. 2000) (“[W]here an employee has mental disabilities the communication process becomes more difficult and the employer must meet the employee halfway—if the employee needs an accommodation but is unable to ask for one, the employer should do what it can to help.”); Barfield v. Donahoe, Cause No. 13 C 1518, 2014 U.S. Dist. LEXIS 129903, at *12 (N.D. Ill. Sep. 17, 2014) (“An employer cannot always expect an employee with a mental illness to know that he must specifically say ‘I want a reasonable accommodation.’”) (quoting id.).
Moreover, good faith participation in the interactive process is not a “one-off event.” Cloe v. City of Indianapolis, 712 F.3d 1171, 1178 (7th Cir. Ind. 2013). Instead, it is “a continuing obligation.” Thus, employers should use caution should prior accommodations no longer be reasonable, or termination is being considered because “the failure of an attempted accommodation does not excuse an employer from further participation in the interactive process.” Dunlap v. Liberty Natural Prods., Cause No. 3:12-cv-01635-SI, 2013 U.S. Dist. LEXIS 167165, at *17–18 (D. Or. Nov. 25, 2013).
Employers should use caution in dealing with employees’ disabilities in the workplace. It is prudent to consider that summary judgment is likely to be denied where there is an issue of fact relating to whether the employer engaged in “an appropriate interactive process.” Rednour, 51 F. Supp. 3d at 828 (quoting Rehling v. City of Chi., 207 F.3d 1009, 1015–16 (7th Cir. 2000)).
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