The CEO’s Desk: The Interactive Process

THE INTERACTIVE PROCESS: A HOLY GRAIL FOR ABSENCE AND DISABILITY MANAGERS

Although the Americans with Disabilities Act (ADA) turned 33 this year, it continues to challenge employers. The law itself is confusing, and there are more regulations at the local and state level than anyone could have imagined back in 1990 when the ADA was signed into law. All of this regulation makes tracking and compliance tricky, but the real danger is falling into a complacency trap (a term used by one of our authors in this issue).

It’s easy to think that experience leads to mastery of laws like the ADA. But after spending years in this field and developing ADA-specific education, I can say with confidence that mastery of the ADA is elusive. We all struggle at times to identify reasonable accommodations that help employees stay at work when possible or return to work sooner. You see evidence of this industry issue in the number of disability-related lawsuits filed by the Equal Employment Opportunity Commission (EEOC). Anyone who gets EEOC email updates learned about five cases in the first seven days of September — one of which included a jury award of $36 million granted after two hours of jury deliberation!¹

As we struggle to understand and comply with the ADA, we must also brace for new laws, like the Pregnant Workers Fairness Act (PWFA), and different interpretations of laws, such as the recent Supreme Court decision² about undue hardship and reasonable accommodations for religious beliefs. That case should prompt employers to reassess their approaches to ADA accommodations with a special focus on the interactive process.

While it can be frustrating, we have compelling reasons to invest more time and energy in this area to ensure that our policies and procedures include a consistent interactive process that helps employers find ways to support employees in need.

“You have one of the few jobs in the world where you can actually save someone’s life by removing barriers,” Rachel Shaw, principal, Shaw HR Consulting, told 2023 DMEC Annual Conference attendees.

She’s right. How many times have you (or one of your direct reports) heard someone say, “You’re a lifesaver” after helping them navigate their options? Our main goal as absence and disability management professionals is to use the interactive process to learn about employee challenges, obtain specific limitations and medical restrictions from healthcare providers, and help employees stay at work or return to work when possible. It sounds simple but we know it is not. Legal experts often say “it depends” when discussing an ADA case, and a frequently missed question in the ADA Accommodations Process Microcredential Course³ relates to what is considered reasonable when assessing accommodation requests.

Muddying the Waters

Understanding the ADA is especially important now as employers prepare for final PWFA regulations from the EEOC. While similar to the ADA in some ways, the PWFA is notably different in others, as explained by authors in this issue. One major difference is that the employers are required to have (and document) the interactive process and to provide accommodation options that help employees stay at work. This should always be an employer’s goal but it does not always happen, as evidenced by EEOC email updates about lawsuits filed and won.

As legal experts say, the key is to avoid a lawsuit, not celebrate a win, and the best way to do that is to return to basics, make sure everyone managing accommodations gets regular education about the provisions of the law, and overcommunicate resources to employees. EEOC lawsuits hit the headlines but the agency notes that it resolves most ADA employment-related cases through negotiation or mediation.⁴ And demonstrating an investment in education and training illustrates an employer’s commitment to supporting employees.

It is exhilarating (albeit challenging at times) to work in this evolving industry, but it can be exhausting without the tools needed for success. I frequently remind absence and disability management professionals that learning is a lifelong journey. It’s a message I have delivered through most of my columns, and it is fitting that I end my last CEO’s Desk with that reminder.