Monday, May 14, 2018

The ADA’s interactive process is always a two-way street


Photo by MelanieSchwolert via Pixabay
Who has the burden of proof in an ADA reasonable accommodation case? The employee, to prove a lack of an accommodation, or the employer, to prove the unavailability of an accommodation? 

In Snapp v. BNSF Railway, the 9th Circuit Court of Appeals re-affirmed that the burden squarely rests on the shoulders of the employee.

Snapp, a railway trainmaster, suffered from sleep apnea, which ultimately resulted in his doctor certifying him as unfit to work in a safe manner. When his disability benefits terminated, rather than propose a reasonable accommodation that could have permitted him to return to work, he sued his employer for its alleged failure to offer him any reasonable accommodation.

The 9th Circuit affirmed the defense verdict, holding that the failure of the interactive process in this case rested squarely on the shoulders of the employee, not the employer.
Notifying an employer of a need for an accommodation triggers a duty to engage in an “interactive process” through which the employer and employee can come to understand the employee’s abilities and limitations, the employer’s needs for various positions, and a possible middle ground for accommodating the employee. 

In this case, Snapp never asked for any accommodation that could have enabled his return to work; he merely challenged the termination of his disability benefits. Accordingly, the jury properly concluded that he failed to meet his burden of showing the employer failed to provide any reasonable accommodation.

The ADA does not require an employer to offer a disabled employee the most reasonable accommodation, or the employee’s preferred accommodation. Instead, it only requires the employer to offer a reasonable accommodation, one which enables the employee to perform all of the essential functions of the job. Yet, if an employer does not know that an employee needs, or wants, an accommodation, how can an employer know that it is supposed to offer anything. 

The interactive process is a two-way street, and in most cases, it’s incumbent upon the employee to enter first. 

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