One small mistake in the interactive process to determine whether you can reasonably accommodate a “disabled” worker can result in getting sued under the Americans with Disabilities Act.
A federal court issued a decision recently that an ADA case brought by a worker who was denied the opportunity to show she could perform essential job tasks can now go to trial. That’s despite the fact that the employer had engaged in the interactive process with the disabled worker, but had called off a planned demonstration after a panel and experts had concluded that the planned accommodation would create a workplace safety hazard.
This case is applicable to any employer with more than five employees in California under the Fair Employment and Housing Act, and to employers of 15 or more workers under the ADA.
The decision by the United States District Court in the southern district of Indiana illustrates how one innocent misstep in the interactive process can end up costing you. At this point the case still has to go to trial, but it could result in damages against the employer in question, GE.
In the case at hand, English vs. General Electric Co., a woman had worked for GE as an assembler since 1985. She sustained an injury to her rotator cuff in 2007 and doctors permanently forbade her to reach above her shoulders with either arm.
Two years later, she was promoted to the position of repair job operator based on her seniority with the employer. Shortly thereafter, GE’s medical staff concluded that her shoulder disability and doctors’ restrictions prevented her from performing the essential functions of the job.
To ensure fairness, the employer initiated a formal ADA reasonable accommodation process and her case was referred to an accommodation review committee, which was charged with determining if she could perform the job with any specific accommodations.
The committee scheduled a demonstration during which the employee was going to show that she could perform the essential job functions with the assistance of a three-step stool. But that demonstration was canceled because the committee determined that the stool would create a safety hazard, as it would be too close to the assembly line tracks’ ball bearings and pin rollers. They also said the stool would block workers’ movements around the assembly line.
The position was awarded to another employee, and the employee sued under the ADA accusing the employer of failing to engage in the interactive process.
GE moved to have the case thrown out of court via a motion for summary judgment, but the local court denied the motion, which the company appealed to the US District Court. That court eventually upheld the lower court’s decision, paving the way for the case to proceed to trial.
During the appeals process, GE presented testimony from the accommodation committee members that the employee still would not have been able to do the essential functions of the position, even if given the requested three-step stool.
The company also cited the opinion of a workplace ergonomics consulting firm that analyzed five possible accommodations for the employee and found that none of them would have completely eliminated the excessive shoulder flexion problems the employee would experience in this new position.
But the district court concluded that, nonetheless, the employer should have allowed the employee to demonstrate whether she could or could not do the job with the three-step stool.
The court wrote: “The scheduled demonstration could have definitively shown that GE could not safely accommodate Ms. English’s disability, or it might have proven to GE that it could indeed provide Ms. English an accommodation. But unfortunately, GE chose not to go through with the demonstration, and this litigation ensued.”
If you have a disabled employee who requests reasonable accommodation to perform their job, you must enter into an interactive process and document all of the steps you take to determine whether you can or cannot accommodate the worker. You should have in place plans for how you would conduct the interactive process.
There is also a workers’ comp angle here, as a serious workers’ comp injury can later turn into a permanent disability that requires accommodation. If you don’t play your cards right, you can be sued for breaching the ADA in such a case, as well.