Given the EEOC's aggressive disability stance, employers are encouraged to engage in the interactive process until it is no longer possible and/or no longer reasonable. See EEOC Guidelines on Disability Accommodation and Safety Training for related guidance.
Facts of the case:
The situation at issue should be familiar. National department store chain Kohl’s employed Pamela Manning as a sales associate. In January 2008 Manning transitioned from part time to full time (36–40 hours per week), working predictable shifts which usually started no earlier than 9:00 a.m. and ended no later than 7:00 p.m.
In January 2010 Kohl’s restructured its staffing system nationwide. As a result, Manning’s schedule became unpredictable and included a number of “swing shifts” (a night shift followed by an early shift the next day).
In March 2010 Manning told her supervisor that this schedule “was aggravating her diabetes and endangering her health.” The supervisor requested a medical note and Manning provided one signed by her endocrinologist. The doctor reported that working irregular hours contributed to high glucose levels and recommended a predictable day shift (for example, 9 a.m.–5 p.m. or 10 a.m.–6 p.m.) so she could better manage her condition and treatment.
Upon receipt of the information, store manager Tricia Carr conferred with Kohl’s corporate HR department, which instructed that Kohl’s could grant a “no swing shift” request but could not guarantee Manning would not work nights. Carr met with Manning on March 31, 2010 to discuss the request in more detail. At the meeting Manning clarified that she wanted a predictable day shift: “I was asking for a midday shift, what I had before, the hours that I had before [the departmental restructuring].”
Carr informed Manning that a day shift schedule would not be possible, and the discussion ended there. Manning became upset, told Carr she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours, put her store keys on the table, walked out of Carr's office, and slammed the door. Carr followed Manning to the employee break room, attempted to calm her down and requested that she reconsider her resignation and discuss other potential accommodations. Manning refused. Two days later she contacted the EEOC.
On April 9, 2010 Carr called Manning and again asked her to reconsider her resignation and return to talk about accommodations. Manning again refused.
Kohl’s prevailed in litigation. The EEOC brought suit in federal court asserting Kohl’s failed to provide reasonable accommodation under the ADA. The district court granted summary judgment for Kohl’s, finding Manning disabled and able to perform essential functions with or without accommodation, but concluding Manning had failed to engage in the interactive process in good faith.
The EEOC appealed to the First Circuit. The three-judge panel affirmed summary judgment for Kohl’s by a 2–1 margin. The majority observed that the interactive process is an informal bilateral dialogue between the employee and the employer for the purpose of discussing the employee's issues and potential reasonable accommodations.
In this case the court found both parties initially participated in the interactive process, but that the process stopped when Manning left the March 31 meeting, confirmed her resignation in the break room, and rejected the April 9 invitation to resume discussions.
The majority emphasized that both employer and employee have a duty to engage in good faith and that if an employee fails to cooperate, the employer cannot be held liable for failure to provide reasonable accommodation when it has engaged in good faith efforts.
The First Circuit denied requests for reconsideration and full-court review in February 2015.
The HR Tip:
The First Circuit decision was close (2–1) and the dissent argued Kohl’s initial response during the March 31 meeting was inadequate because the manager did not assure Manning that her request could be granted. The majority, however, credited Kohl’s extra effort to restart the interactive process after Manning stormed out.
Carr attempted immediately after Manning left to bring her back to the table, and she telephoned Manning nine days later to ask her to reconsider. Those efforts helped establish that Kohl’s had continued to engage in the interactive process until Manning made clear she would not participate further.
The lesson for employers is straightforward: engage in the interactive process until it is no longer possible or reasonable. If the employee re-engages, the employer must participate fully and may then determine whether a reasonable accommodation is possible.
Employers managing staffing and operational risks should also review related resources such as Merchant Processing Insurance when considering broader business impacts, and if you have questions about insurance options, talk to an agent.
Article courtesy of the Bullard Law Firm.
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of HR experience and spent years in employment practices litigation.
Frequently Asked Questions
When should an employer start the interactive process?
An employer should begin the interactive process as soon as it becomes aware of an employee's disability-related need for accommodation.
How long must an employer keep trying to engage an employee?
An employer must participate in good faith and continue efforts until further interaction is not possible or reasonable, such as when the employee clearly refuses to participate.
Does an employee's resignation end the employer's obligations immediately?
If an employee voluntarily resigns and refuses to re-engage, the employer may be relieved of further accommodation obligations, provided it has made good-faith efforts to continue the process.
What documentation should employers keep?
Keep records of communications, medical documentation provided by the employee, and steps taken to identify and implement reasonable accommodations.