Mediating the Interactive Process, 0517 COBJ, Vol. 46 No. 5 Pg. 35
| Author | Kathryn E. Miller, J. |
Labor and Employment Law
Kathryn E. Miller, J.
Mediating the Interactive Process
This article considers mediation as an optimal interactive process for resolving reasonable accommodations disputes between employers and employees.
A number of state and federal laws require that employers engage in an “interactive process” with employees who need or request a reasonable accommodation for work.1 Although much litigation has ensued over the exact parameters of this obligation, it remains a challenging aspect of employee relations for all parties.
This article explores the statutory requirements of the interactive process and discusses how mediation can enhance the opportunities to find a reasonable accommodation and ensure that employers comply with their legal obligations.
Statutory Requirements
A number of federal and state statutes together prohibit employment discrimination and require reasonable accommodation for disabilities.
The Americans with Disabilities Act
The Americans with Disabilities Act2 (ADA) prohibits employment discrimination based on a disability and prohibits retaliation against any person who has opposed discriminatory practices made unlawful by the ADA. The ADA was significantly amended in 2008 to broaden its coverage and reject the limitations on its scope resulting from U.S. Supreme Court decisions.3 To establish that an individual has a disability within the meaning of the ADA, the individual must show that he or she (1) has an impairment that substantially limits a major life activity; (2) has a record of an impairment that substantially limits a major life activity; or (3) is regarded as having an impairment that substantially limits a major life activity.4
To be protected by the ADA, an individual with a covered disability must also be “qualified,” which means that he or she can perform the essential functions of the job (defined as the fundamental, not marginal, duties of the position) with or without reasonable accommodation.5 Thus an employer must determine if the employee can perform the essential functions of the job, and if not, whether there is a reasonable accommodation that would enable the employee to perform those functions.
To facilitate the determination of whether a reasonable accommodation can be made, “federal regulations implementing the ADA envision an interactive process that requires participation by both parties.”[6] The extent of this interactive dialogue will necessarily vary from situation to situation Essentially, the law requires good-faith communications between the employer and employee to “identify the precise limitations resulting from the disability” and potential accommodations that will allow the employee to overcome those limitations.[7]
Title VII Protections
The Civil Rights Act of 1964, as amended,[8] protects against discrimination based on race, color, religion, sex, or national origin. The accommodation for religious beliefs requires employers to go beyond neutral policies to find ways to accommodate the religious practices of employees. An employer that fails to hire an employee with the motive of avoiding accommodation may violate the law[9] Accommodation was also an issue in a recent Supreme Court decision regarding pregnant employees, who are not considered disabled.10 In Young v. United Parcel Service, Inc., the employer’s light duty policy covered individuals who are injured on the job, disabled, or who lost their Department of Transportation certification to drive commercial vehicles. The issue was whether the employer’s practice of providing accommodation to nonpregnant employees must similarly accommodate pregnant employees under Title VII as amended by the Pregnancy Discrimination Act. Finding that cost and inconvenience are not defenses, the Supreme Court held that the Pregnancy Discrimination Act may be violated where the employer accommodates non-pregnant, but not pregnant, employees.[11]
Patient Protection and Affordable Care Act
The federal Patient Protection and Affordable Care Act requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth,” and provide a place to do so other than a bathroom [12]
Colorado Statutes
The Colorado Anti-Discrimination Act (CADA) prohibits employer discrimination based on disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry. 13 On June 1, 2016, the Colorado legislature amended CADA in response to Young. The law requires employers to provide a reasonable accommodation to pregnant employees by
. providing reasonable accommodation to an employee for health conditions related to pregnancy or physical recovery from childbirth, if requested, unless doing so would impose an undue hardship;
. engaging in a timely, good-faith, and interactive process to determine an effective, reasonable accommodation, if requested;
. not requiring an employee to accept an accommodation that has not been requested or that is unnecessary to perform the essential functions of the job. 14
The provision of similar accommodation to other classes of employees creates a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.15
Workplace Accommodations for Nursing Mothers
Colorado’s Workplace Accommodations for Nursing Mothers Act16 requires employers to make reasonable efforts to accommodate an employee who chooses to express breast milk in the workplace for up to two years after the birth of the child. The parties must engage in mediation prior to filing in court for any alleged violation of the Act.
Engaging the Interactive Process
Employers generally understand that they are...
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