The ADA requires employers to engage in an interactive process with disabled employees, and courts often set a high bar for what that looks like. Expensive litigation continues to be the consequence when employers terminate an employee during or at the end of the interactive process. The need for managers and supervisors to understand how to communicate and clearly document that communication with employees is never more critical than when they are facing an employee who needs an accommodation to perform his job. McClain v. Tenax Corporation is a sobering reminder of how much emphasis federal courts place on employers engaging in the interactive process and working with employees with disabilities.

Background

Terry McClain, who worked for Tenax Corporation, was born with hand and foot deformities—two fingers on each hand, half a foot on each side, and no toes. As a result, McClain had difficulty grasping with his hands, walking, and climbing up or down steps. Nevertheless, he worked 40 hours per week supervising temporary janitorial employees. After a year or so, Tenax cut McClain’s hours in half because of a production slowdown. To make up for his loss of hours, Tenax offered McClain additional work wrapping pallets and moving them to a warehouse. McClain accepted the work and began working part time in his janitorial position and part time in his pallet-wrapping position.

Unlike his janitorial position, the pallet-wrapping work required McClain to constantly climb in and out of a forklift. Within two days, McClain was experiencing pain and receiving complaints from Tenax managers about his inability to complete his work efficiently. Because of the issues that he was having, McClain told the plant manager that he could not perform the pallet-wrapping work and requested that Tenax accommodate his disability by allowing him to return to his original position on a full-time basis. According to McClain, Tenax managers gave McClain an ultimatum—do both jobs or quit. Ultimately, McClain quit and sued Tenax for violating the ADA by failing to accommodate him and retaliating against him for requesting accommodations.

District Court Denies Employer’s Summary Judgment Motion

Tenax moved for summary judgment, asserting that it could not have failed to reasonably accommodate McClain because his requested accommodation—a full-time janitorial position—did not exist. The U.S. District Court for the Southern District of Alabama disagreed.

First, the court explained that an employer must make a reasonable accommodation for the known physical or mental limitations of an otherwise qualified employee unless the accommodation would impose undue hardship on the operation of the business. The court noted that McClain frequently informed his managers of his inability to perform the essential functions of his job because of his disability and requested a specific accommodation—a return to his previous full-time position. The court determined that Tenax had not proven that accommodation would have posed an undue hardship.

Returning to Tenax’s argument that it had no full-time janitorial positions, the court ruled that Tenax failed to present any evidence that this statement was true during the two-month period that McClain worked part time wrapping and moving pallets. However, the court’s most significant holding was that the facts presented by McClain gave rise to a reasonable inference that Tenax discriminated against McClain because of his disability and precluded summary judgment in Tenax’s favor on McClain’s failure-to-accommodate claim. The court stated that McClain presented sufficient evidence that Tenax had summarily rejected all of his requests by informing him that his only options were to keep doing both jobs or resign. If Tenax gave such an “all-or-nothing ultimatum,” it would have “slammed the door on any possibility of a reasonable accommodation, foreclosed the option of McClain working just as a part-time [janitor, and] obliterated any possibility that the ADA interactive process could ever take place.”

Have the Tough Conversation

So what should employers do to avoid (or be in the best position to defend) failure to accommodate claims?

  1. Have the tough conversations! It is true that these discussions may be awkward and seem personal and invasive, but they are necessary to protect your business. Engaging in an open dialogue with your employee about his disability and what he needs to successfully perform his job—even if you can’t provide the accommodation—places you in the best position to defeat potential claims of ADA discrimination in the future.
  2. Don’t look for magic words. Remember that while an employee must affirmatively request a reasonable accommodation, there is no specific language that must be used to prompt an employer to begin the interactive process. As soon as the employee expresses that he cannot perform the essential functions of his job because of a disability, whether formally or informally, it is time to begin asking questions. If you need information from his doctor, get it (keeping in mind that you are interested in his ability to do the job and not a lot more).
  3. Talk to your core decision makers. After you are fully aware of the employee’s limitations, communicate with HR and other necessary management personnel in the employee’s department to determine what options are available and how you will be impacted by implementing such options. Once you have decided on an accommodation—and especially if you have decided that you can’t provide an accommodation—talk with legal counsel to review what your obligations are under the ADA and ensure that you have considered all sides and have properly documented the interactive process.
  4. Accommodate if you can, and clearly document if you cannot. Make sure your employee fully understands that you want to work with him. If you cannot accommodate him in his job, look at vacancies and explain those options.

Employers can’t always reasonably accommodate an employee’s disability. Hopefully, by consistently using these strategies on a case-by-case basis, you can avoid this growing area of litigation.