A recent decision by the United States Court of Appeals for the Second Circuit clarifies the extent of an employer’s obligation under the Americans with Disabilities Act (“ADA”) to engage in an interactive process with an employee to identify a reasonable accommodation. Importantly, the court held that an employer’s failure to engage in an interactive process does not form the basis of an ADA claim in the absence of evidence that an accommodation was possible which would have permitted the employee to perform the essential functions of the job.

In McBride v. BIC Consumer Products Manufacturing Co., 583 F.3d 92 (2d Cir. 2009), the plaintiff rejected an accommodation BIC offered upon her return from medical leave. The parties did not discuss any additional potential accommodations and, notably, the plaintiff never proposed any alternative accommodation. Although there were several vacant positions at BIC around the time of the plaintiff’s termination, the plaintiff failed to demonstrate that she was qualified for any of the available positions. At the expiration of the plaintiff’s medical leave, BIC terminated her employment.

The plaintiff argued that she should have been excused from having to provide evidence of an accommodation that would have permitted her to perform the essential functions of her position because BIC supposedly refused to engage in an interactive process concerning possible accommodations — an argument squarely rejected by the court. Rather, the court found that the ADA does not impose liability on an employer for failure to engage in an interactive process where no accommodation was in fact possible.

Although the McBride decision may certainly be useful to employers in defending themselves against ADA claims where it is unequivocally clear that no accommodation is available, best practices call upon an employer to engage in an interactive process with an employee potentially entitled to protection under the ADA. In fact, the McBride decision specifically cautions employers in this regard, stating that “an employer, by failing to engage in a sufficient interactive process, risks not discovering a means by which an employee’s disability could have been accommodated and thereby increases the chance that it will be found to have violated the ADA.” Moreover, New York employers must remain mindful of the fact that the New York State and New York City Human Rights Laws may be interpreted differently than the federal law and impose a more stringent burden on employers.