The Disability Interactive Process: Where Disability & Discipline Meet
“My disability made me do it.” Little can be more frustrating than when an employee makes a disability claim during a disciplinary process. While it’s likely a good number of these claims are not legitimate, some may be. The key is to employ a consistent disability interactive process that is robust enough to manage out the fraudulent requests while providing a supportive framework for those that are actually needed.
Whether at the beginning of addressing a performance issue, or in the eleventh hour of a disciplinary process, when a question of a disability arises, your organization must pause any disciplinary actions and begin the disability interactive process as outlined by the Americans with Disabilities Act (ADA). We do this to protect our organizations and follow the ADA law. The courts have made it clear: “Conduct resulting from a disability is part of the disability and not a separate ground for termination.” From Gambini v. Total Renal Care, Inc. (Federal 9th Circuit Court of Appeals, 2007). This means an employer is required to explore if a disability is the cause of discipline and if so, explore if there are reasonable accommodations that, if implemented, will resolve negative performance or behavior.
What’s important to understand is that going through the interactive process does not guarantee an employee will be provided with accommodations – or even that the employee is disabled. If the process reveals an employee does not have a
What’s important to understand is that going through the interactive process does not guarantee an employee will be provided with accommodations – or even that the employee is disabled.
disability that prevents him or her from performing the job fully or safely, then he or she will be moved back into the organization’s disciplinary process. Trust the process will show whether a request is appropriate or not, and be assured all roads lead to successful and safe performance of the job. Having a disability won’t excuse an employee from performance standards, but if their performance is disability related, it may be possible to support them to be successful with the implementation of reasonable accommodations.
Know Your Disability Interactive Process Goals
Your goals in the interactive process are to determine:
- Does the employee have a disability that has impaired them in the performance areas being disciplined?
- If they do have a disability, are there any accommodations that, if implemented, would support them to fully and safely perform the essential functions of their job successfully and remedy the performance issue(s)?
The Disability Interactive Process Hallway®
I’ve managed more than 1,000 discipline-meets-disability cases. Through these and thousands of other types of disability compliance cases, I have developed what I call the Disability Interactive Process Hallway. It’s a metaphorical hallway with four doors, or key process steps, which lead you through the Hallway and to a justifiable decision and best possible outcome for an employee who may or may not need workplace accommodations. Each door serves as a step along the path of ADA compliance – Door #1 – Medical Documentation; Door #2 – Exploration of Accommodation Ideas; Door #3 – Scheduling and Holding a Reasonable Accommodations Meeting; and Door #4 – Closing the Process Properly. In cases where performance deficiency may be partially or wholly caused by a claimed disability, Door #1 – obtaining medical information – is critical.
The “Hallway” always begins at Door # 1. It is at this door you will discover if the employee has a disability impacting their performance wholly or partially. If the employee’s medical provider, or your third-party Fitness for Duty (FFD) doctor, indicates performance issues are not related to an ADA covered disability then you exit the “Hallway” and proceed with discipline. If the medical provider indicates the disability was partially or wholly responsible for the performance issue, then continue in the “Hallway” and move to Door # 2.
Let’s take for example, Amy, who states verbally she has a medical condition as a response to a poor performance review. What now? Start by asking Amy to identify which of the performance evaluation areas she believes may be impacted by the claimed disability. Make sure she circles and initials each section she identifies on the written evaluation.
Amy circles the fact that she has performance issues meeting deadlines. From here formally begin the Disability Interactive Process Hallway for these and any other items Amy has linked to her claimed disability. Now you are at Door #1, and your job is to clarify and confirm a disability with a medical provider. Create a letter and questionnaire for Amy’s medical provider. Let the provider know Amy has indicated she has a serious medical condition that causes her to miss deadlines. Outline the parameters of most deadlines and be specific. For example:
“Please be advised Amy is typically assigned projects with deadlines that are three to four months out from the assignment date. The main issue in your patient’s case is that she never informed her supervisors she was off-track in meeting the deadline. She did not request an extension or assistance to meet the deadline. It was not until the project deadline passed, and she was asked where the project report was, that she indicated she was significantly behind.”
In addition, if you – the employer – do not perceive Amy to be disabled, then also state so in the letter to the provider. For example:
“The employer has not perceived your patient to be disabled but to have time management and communication deficiencies that are best addressed through direct supervision and performance support.”
Sample Questions to Get Clarified Information from the Medical Provider
Ask yes or no questions that are detailed. For example, ask explicitly about her ability to meet deadlines in addition to her ability to communicate them:
ABILITY TO COMMUNICATE MISSED DEADLINES
Does your patient have a medical condition that makes her unable to realize when she is behind schedule on a project?
___ NO, my patient does not have a medical condition that would impact her ability to know when she is behind schedule on a project.
___ YES, my patient has a medical condition that would impact her ability to know when she is behind schedule on a project.
___ There are no accommodations that would eliminate this issue going forward.
___ The following accommodations, if implemented, would eliminate this issue going forward:
________________________________________________________________
___ UNKNOWN, I am not treating this patient for a condition that would allow me to answer this question.
ABILITY TO MEET DEADLINES
Does your patient have a medical condition that makes her unable to meet deadlines?
___ NO, my patient does not have a medical condition that would impact her ability to meet deadlines.
___ YES, my patient has a medical condition that would impact her ability to meet deadlines.
___ There are no accommodations that would eliminate this issue going forward.
___ The following accommodations, if implemented, would eliminate this issue going forward:
________________________________________________________________
___ UNKNOWN, I am not treating this patient for a condition that would allow me to answer this question.
Gathering detailed medical information to support an employer’s position is essential, especially in seemingly silly or even fraudulent cases. If you need to spend more time at Door #1 to get it right – it will be time well spent. No matter how tedious and time consuming it may seem, it will never be as onerous as defending an EEOC claim or lawsuit.
Don’t be afraid to push a doctor to supply information needed to determine if there is a disability or if a disability can be overcome with reasonable accommodations. If the provider states Amy’s disability does not cause her to miss deadline, then you can proceed to the next steps of discipline following her performance review. If the provider deems Amy to have a disability that causes her to miss deadlines and provides accommodations she believes will eliminate this possibility, then the employer can consider sending the employee to a FFD Examiner for an objective and reliable opinion, or proceed to Door #2 and begin the next step in exploring if the accommodations are reasonable to implement
Don’t be afraid to puss a doctor to supply information needed to determine if there is a disability or if a disability can be overcome with reasonable accommodations.
Keep the Disability Interactive Process Timely, Focused and Consistent
It’s important to remember whether moving through the Disability Interactive Process Hallway or disciplinary process the goal is the same – to support the employee to successful. Keep the process timely, focused and consistent and you will be confident that you and the organization will be making the best possible decisions. Will this strategy create more work for you and your organization? Perhaps, in the short term, but for cases that continue to impact operations, prompt EEOC investigation, or go to trial, you’ll never be sorry to have employed a uniform interactive process when claims arise. You never know which disability issues will end up in litigation. If you apply a regular and sound process, you will be best protected if litigation does ensue.
Rachel Shaw is the principal consultant of Shaw HRC Consulting, a Human Resources firm specializing in providing employers with a full range of Disability Compliance Management consulting and training services to support their compliance with federal and state disability and leave laws. Rachel is also the author of “The Disabled Workforce: What the ADA Never Anticipated.” The book is available at Amazon.
