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What Is The Interactive Process For Family Employers?

The Environmental Protection Agency (EPA) recently won summary judgment on an accommodation claim in a suit brought by an economist in the Standards and Health Protection Division (SHPD).

The plaintiff sued for failure to accommodate his disability along with several other claims, including retaliation and discrimination.

The plaintiff suffers from allergies that can cause him a number of health issues. For many years, his supervisor accommodated his allergies with a private office. However, following a building renovation, the plaintiff was moved to a cubicle. He alleged that the EPA "forced" him to telework around this time, but later made him return to the office. The employee said that teleworking was a good arrangement.

When he returned to the office, he was assigned a cubicle near a man whose strong cologne made him sick. In 2007, he was relocated to a room with many cubicles and his allergies subsided. However, in the fall of 2011, the man with the strong cologne again moved near him.

An upper-level manager allegedly emailed several colleagues that she had asked the man wearing the strong cologne to "tone it down" because of complaints from three employees, including the plaintiff. In mid-November 2011, the plaintiff asked the manager to move away from the man. The plaintiff alleged that the cubicles she offered to move him to also had fragrances that were problematic to him. As a result, the plaintiff requested that the manager either give him a private office or move the man with the cologne.

The plaintiff submitted a request for a private office as an accommodation of his allergies on January 18, 2012. He included a letter from a physician stating that he suffered from adverse reactions to environmental allergens and that it "may be advisable for him to limit this occupational exposure to the allergies in an isolated office environment."

According to an EEO investigator's report, the plaintiff's supervisor agreed to the private office request, pending conferring with her managers. Two of her managers also approved the request. However, another manager may have raised concerns that the air supply would be the same and therefore a private office would not fix the problem.

On June 21, 2012, the supervisor informed the plaintiff in writing that he was being offered full-time telework as an accommodation. The supervisor stated teleworking would allow him to avoid common areas and the shared HVAC system. If the accommodation did not work, the EPA would consider other accommodations.

The plaintiff rejected the accommodation without explanation on June 28, 2012 and again requested a private office. He also rejected a later offer from his supervisor to provide him with an air filter for his cubicle.

Federal Occupational Health conducted an air quality assessment on August 23, 2012 that found no significant difference in the air quality between a closed office and the plaintiff's cubicle. The plaintiff continued to request a private office or that the man with the cologne be moved. He again refused his supervisor's offer to let him telework.

The EPA moved for summary judgment on all claims, and the court granted the motion, which ended the case. The court determined that the employee failed to act in good faith during the interactive process, and the EPA did not commit retaliation. Ali v. Pruitt (U.S. Dist. Ct., D.C. Case No. 2017-cv-01899 (2020).

Commentary and Checklist

Family employers with more than 15 employees, under federal law, and with fewer employees, under many state laws, must provide a reasonable accommodation to an applicant or employee when requested to do so.

When a staff member or applicant makes an accommodation request, family employers must engage in the interactive process in good faith. Every accommodation is determined on a case-by-case basis, considering how the particular disability affects the employee and the requirements of the job.

Work with the individual's health care providers and consider information provided by organizations that support those with the particular disability. Analyze the job duties of the position and the individual's specific limitations to determine what, if any, accommodation is needed.

However, the process is a two-way street. As illustrated in the source article above, the applicant or staff member cannot simply reject any reasonable accommodation with which they do not agree.

If the family employer offers a reasonable accommodation, and the individual refuses to accept it, the family employer's duty is discharged. Always work with legal counsel to document every accommodation effort, so that if the individual with a disability is not participating in the interactive process in good faith, the documentary evidence exists.

Here are some additional tips for that may help in avoiding disability discrimination liability to consider:

·      Create detailed job descriptions for your employment positions that include job classification, title, and essential duties as well as salary and benefits, where applicable.

·      Routinely review your job descriptions to make sure that they are up-to-date as positions evolve and change.

·      Provide training to your managers and supervisors on the Americans with Disabilities Act and the meaning of "essential job function" so they have a better understanding of your organization's responsibility to accommodate.

·      Finally, review your disability and accommodation policy.

·      Make sure supervisory staff know who to inform when a staff member requests a reasonable accommodation.

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