Three Tips for a Legally Defensible Interactive Process During the Pandemic and Beyond

For many employers, the COVID-19 pandemic illuminated ongoing legal compliance challenges. As one example, with a sudden and sharp increase in requests for accommodations under the American with Disabilities Act (ADA), employers across the country learned that they may benefit from a more streamlined and efficient ADA process.

Just this week, on September 8, 2020, the Equal Employment Opportunity Commission (EEOC) released guidance concerning the interactive process during the COVID-19 pandemic. As your risk management partner, we offer the following three tips for a legally defensible ADA interactive process during the COVID-19 pandemic and beyond, consistent with the EEOC’s recent guidance.

Tip #1 – Begin with a streamlined ADA interactive process policy and procedure.

According to the EEOC’s recent guidance, the spread of COVID-19 resulted in excusable delays during the interactive process. Nevertheless, the EEOC advises employers to address employees’ request for accommodations as soon as possible.

To avoid unnecessary delays, employers are best advised to develop and implement an ADA accommodations policy that will generally apply to all requests for an accommodation. Except where the need for an accommodation is obvious (such as an employee in a walker or wheelchair), the interactive process may begin with the request for medical substantiation of the disability and need for an accommodation. For maximum effectiveness, your ADA accommodations policy would direct employees to your standard ADA accommodations forms to begin the interactive process.

Tip #2 – Consider engaging in informal dialogue and offering interim solutions.

The EEOC’s guidance indicates that responsiveness is key to a legally defensible interactive process. While allowing an appropriate amount of time for employees to comply with documentation requests, employers may manage legal risk by beginning an informal dialogue and offering reasonable interim solutions, to the extent that the employee has immediate needs that may be addressed without undue hardship.

Tip #3 – Avoid boxing yourself in to an indefinite telework accommodation.

Notwithstanding telework arrangements necessitated by COVID-19, the EEOC advises that unknown or indefinite timeframes may render telework accommodations either not feasible or an undue hardship. If you have an employee request to telework indefinitely, you may wish to grant a limited extension of telework (to the extent reasonable) while you explore a more reasonable option with the employee.

BONUS TIP – Adopt an accommodations policy before reopening your workplace or bringing employees back from furlough.

According to the EEOC’s recent guidance, employers may ask employees to request accommodations before the workplace reopens or before employees return from furlough. If you do not have an accommodations policy and procedure yet, now may be the ideal time to adopt a streamlined ADA accommodations policy and procedure.

If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your risk management partner!

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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