Employers’ Heightened Obligation To Initiate Interactive Process With Employees

November 12, 2012

In its July 3, 2012 opinion, Thomas v. Bala Nursing & Retirement Center, 2012 WL 2581057 (E.D. Pa. 2012), the U.S. District Court for the Eastern District of Pennsylvania held that an employer must initiate an interactive process with an employee who informs the employer of a medical condition affecting his or her ability to perform their job, even when the employee does not explicitly request an accommodation.

In Thomas, the Plaintiff, Aqila Thomas, was employed by the Defendant, Bala Nursing & Retirement Center (“Bala”), as a licensed nurse practitioner and charge nurse.  Thomas was qualified for her job, but often showed up late for her regularly scheduled shifts.  After several verbal and written warnings as well as a one day suspension, Bala fired Thomas citing her routine tardiness.

Thomas filed suit alleging, among other things, failure to accommodate under the ADA.  Thomas claimed that her tardiness was a result of severe fatigue caused by her medically diagnosed iron deficiency anemia, of which her Bala superiors were aware.  In its motion for summary judgment, Bala asserted that even if Thomas was considered disabled under the ADA, she did not provide Bala with notice sufficient to trigger its obligations under the Act.

Under the ADA, an employer discriminates against an employee if it does “not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an…employee, unless [it] can demonstrate that the accommodation would impose an undue hardship on the operation of the business.”  The court explained that a reasonable accommodation can be as simple as an employer initiating an informal interactive process.

The court first examined whether Thomas placed Bala on sufficient notice to trigger Bala’s obligation to initiate the interactive process.  Looking to the Third Circuit for guidance, the court quoted Taylor v. Phoenixville School District, 184 F.3d 296, 313 (3d Cir. 1999), holding that formal notice need not be given.  Rather, the notice requirement is met as soon as the “employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for the accommodation.”

Next, the court turned to the issue of whether a reasonable accommodation in this case would cause an undue hardship on the operation of Bala’s nursing and retirement center.  The court acknowledged that granting Thomas a reasonable accommodation that allowed her to be tardy for her shift was likely problematic.  However, the court was concerned that an interactive process between Bala and Thomas never took place.  Stating that “[w]hile the record does not seem to indicate that [Thomas] asked for a specific accommodation, we are unable to conclude that one might not exist where no interactive process was ever engaged in to determine what such an accommodation would be.”  The court concluded that summary judgment was improper, as the lack of an interactive process created an issue of material fact.

In short, if an employee indicates that a physical or mental limitation is affecting his or her ability to work, it is essential for the employer to discuss the employee’s limitations and assess potential accommodations.  Importantly, any such communication must be documented.  Failure to do so may subject the employer to exposure under the ADA.

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