When an employee provides notice to his employer of a disability and expresses a desire for a reasonable accommodation, the employee and the employer must engage in good-faith communications—what we have termed the interactive process.

Once an employee triggers the interactive process, both the employee and the employer have an obligation to proceed in a reasonably interactive manner to determine the employee’s limitations and consider whether the accommodations he requests—or perhaps others that might surface during the interactive process—would enable the employee to return to work.

When a federal appellate court begins its opinion like this, it is probably not good news for the employer.

And in this instance, it was not. Kelly Dansie, a former on-call train conductor undergoing treatment for AIDS and testicular cancer, sued Union Pacific (UP) under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) after UP terminated his employment.

The trial court granted summary judgment for UP on the ADA claim (and also entered a judgment in favor of UP on a jury verdict on the FMLA claim). On appeal, the 10^th Circuit found that there was sufficient evidence for a jury to find that UP violated the ADA. Click here to read the opinion!

The Facts

UP scheduled its conductors using an on-call system. Employees were expected to be available to work full time. UP’s policy provided for 2 written notices of attendance violations; thereafter, additional violations led to dismissal from employment.

Dansie temporarily lost his eligibility for FMLA due to time off during an earlier termination/unpaid suspension which was administratively overturned. As a result, he used company-designated personal days to cover work missed due to his illness and/or medical appointments.

After UP charged Dansie with violating its attendance policy, Dansie requested an ADA accommodation for excused absences until he qualified for the FMLA again.

Dansie and his physician, while completing the ADA forms, asked for but did not receive clarification on UP’s definition of “full-time employment”. Dansie requested about 5 days off each month, but his physician stated this was subject to change due to the nature of the illness.

UP denied Dansie’s ADA request because of the amount and unpredictability of the time off needed. When his absences continued, UP ultimately terminated Dansie for violating its attendance policy.

On the ADA claim, the lower court found for UP as a matter of law stating that Dansie’s accommodation was not reasonable, and UP had no duty to engage in the interactive process. Dansie appealed.

The Opinion

Interactive Process

The court first held that a reasonable jury could find UP failed to engage in the interactive process when determining whether a reasonable accommodation existed for Dansie. In doing so, it relied upon the following facts:

UP did not clarify its definition of “full time” employment despite Dansie’s requests to do so; in fact, email correspondence showed Dansie asking for guidance from UP and struggling to locate a corresponding written policy.
When Dansie told his supervisor he thought his accommodation was approved by UP, the supervisor just shrugged and walked away.
When Dansie tried to discuss medical issues with his supervisor via email, his supervisor responded that he only wanted to know what days Dansie was unable to work and not the details of his medical treatments.

The court recognized that neither the employer nor the employee can cut off the interactive process prematurely.

Reasonable Accommodation

On the issue as to whether a reasonable accommodation existed, the court found that a jury could conclude that Dansie’s request to take off 5 days a month until he qualified for FMLA was reasonable, and that permitting Dansie to use his accrued paid leave to cover these absences was also reasonable. Further, the court stated that UP should have considered reassignment to an available vacant position.

Pings for employers!

Don’t end the interactive process early. Make sure to explore other accommodations that may work under the circumstances. The interactive process is the best way to explore accommodation possibilities and come to a safe resolution – either a reasonable and effective accommodation or a conclusion that there is no option to help the employee perform the essential functions of the current position. Although this case is from the 10^th Circuit (covering Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma), it provides an important lesson for employers in all states.
And as the court points out, if an employer fails to engage in the interactive process, it will be difficult to resolve the case early and avoid a jury trial – a place you don’t want to be!
Communicate with your employees throughout the interactive process! That means answer their questions promptly and thoroughly, even if you think it is something the employee should know or something you believe you already answered!
Train your supervisors. It is true that many employers do not want their supervisors to discuss detailed medical information with their employees. But, in this case, the supervisor went too far by walking away from Dansie when he stated his accommodation was approved. A better response would be to inquire further, get more facts from Dansie and contact Human Resources. Reading between the lines of the court opinion, it appears the supervisor was possibly afraid to discuss the ADA or any medical issues with Dansie, especially in an email.
The court also did not like how the supervisor told Dansie that he did not need to know about Dansie’s medical issues—just the days Dansie would not be working. Again, the supervisor was likely thinking he should not discuss detailed medical issues, especially in writing. A better response would be to involve Human Resources to discuss Dansie’s situation. Supervisors should use common sense and act in a compassionate manner when an employee brings up his or her medical needs and accommodation requests – but get help from the HR experts!
Consider Alternative Vacant Positions Before Termination. We cannot stress this enough. This case further supports the importance of considering the “accommodation of last resort” – assignment to an alternative vacant position.
Document, document, document! Keep a complete record of all communications, in writing or verbal, with the employee or his/her representatives about the accommodation discussions and efforts.

Matrix Can Help!

At Matrix, we’re always assessing the application of leave and accommodation laws to the services we provide. Whether on this blog, at one of our quarterly compliance update webinars, or in compliance consultations with our client employers and business partners, you can count on Matrix to keep you updated on the latest developments in leave of absence, paid leave benefits, and ADA accommodations. Contact your Matrix or Reliance Standard account manager, or one of our regional practice leaders for more information or send us a message at ping@matrixcos.com.