What Employers Need to Know About Disability Discrimination and the ‘Good Faith Interactive Process’

As an employer, it’s imperative that you understand what accommodations you’re required to make for your employers in regards to disabilities. For example, if you notice an employee has an injury sustained outside of work, do you need to accommodate them? To explain your obligations in such instances, you’ll need to first understand, the “Good Faith Interactive Process”.  As an employee, it’s also important to understand what obligations your employer must adhere to in the event you have a disability. 

What is the Good Faith Interactive Process?

In New York, laws such as the New York State Human Rights Law (NYHRL) require employers to try to accommodate disabled employees and engage in the Good Faith Interactive Process. Such accommodations may include:

• Providing modifications to existing facilities, such as installing a wheelchair ramp
• Modifying or acquiring equipment to accommodate disabled employees, this may include handicap accessible desks or ergonomic keyboards
• Modifying employee work schedules or permitting additional breaks to accommodate their conditions or the need to attend ongoing doctor’s appointments;
• Providing employees with leaves of absence longer than required by applicable leave of absence laws, such as the Family Medical Leave Act (FMLA) or the New York’s Paid Family Leave Act (PFL);
• Reassigning an employee to a different position, or offering modified or light dut

Employees that have pregnancy-related temporary disabilities are also permitted to request accommodations under the federal Pregnancy Discrimination Act (PDA) and state laws such as the New York’s Protect Women from Pregnancy Discrimination Act. Employers are required to engage in the interactive process for pregnancy-related disabilities in the same way they would be required to engage in the interactive process for other types of disabilities.

Keep in mind that these requirements only apply to those who are considered to be “employers’ under the law. Furthermore, ailments such as a cold, minor cuts, or sprains are unlikely to be considered a “disability.” In certain cases, a notification that the employee has a disability may sometimes require providing a doctor’s note to the manager or human resources department.

In order for a physical or mental condition to qualify as a “disability,” it must limit the employee’s ability to participate in major life activities, that may walking, breathing, or performing manual tasks. If the employee does not have such a “disability,” they do not have the right to request a reasonable accommodation. 

Employers should also be aware that it is not unlawful for an employer to fire an employee if the employee cannot perform her essential job duties even with a reasonable accommodation. Additionally, an employer does not have to engage in the “good faith interactive process” or accommodate a disabled employee if they never perceived the employee’s disability or if the employee never notifies the employer of the disability.

What an Employer is Required to Do in the Interactive Process

Once the duty to engage in the good faith interactive process has been identified, the employer must promptly schedule a meeting with the employee to discuss and select appropriate disability-related accommodations. They must also provide the selected accommodations as long as they don’t pose an “undue hardship” on the employer.

The interactive process is an ongoing process. You should not expect to have one conversation with your employee and move on from the process. For example, if you accommodate an employee request by transferring them to a less strenuous position, you must alert them to future positions that become available. If they request modified work equipment, you must actually acquire the equipment for them to use. 

Do I Need a Lawyer for the Interactive Process?

The interactive process is designed to occur between you and your employee. While you are not required to have a lawyer participate in the interactive process, it can be helpful to speak with a lawyer to understand your duties as an employer. If things go wrong, or your employee threatens legal action then you have an attorney already familiar with your case, which can be beneficial.

Notes for Employees

As an employee, you should retain an attorney if you are being retaliated against due to your request for disability accommodations. Although it’s illegal, there are instances where an employer has written an employee up, cut their hours, or even fired them after they spoke up and requested accommodations. 

You should be aware that your request for accommodations is a “protected activity,” meaning your employer cannot retaliate against you for making the request. If this happens, you should talk to a lawyer as soon as possible to help you navigate the situation.

Contact Our Experienced Disability Discrimination Attorney

We have personal experience navigating requests for reasonable disability accommodations, as well as guiding employers as to their duties to their employees.  If you need guidance or legal assistance in these areas do not hesitate to contact us today by giving us a call at 516-741-0300 to learn how we can help.