Employees with disabilities face a dilemma when a requested accommodation for their disability is denied by management. Many employees will feel demoralized or offended at the rejection of a request for an accommodation, which they believe to be medically necessary because of their physical or mental limitations. In this space, however, for employees to successfully preserve their rights under the Americans with Disabilities Act (“ADA”), employees and their counsel must be mindful of the employees’ responsibilities to engage in the interactive process before filing a lawsuit, particularly in light of an increasing number of district court opinions in the Fourth Circuit dismissing an employee’s claim where the employee was found to have caused the interactive process to break down.

The ADA requires in part that employers communicate with employees who have a disability to determine whether a reasonable accommodation is possible, a concept known as the interactive process. The interactive process, “require[s] employers and employees to discuss openly and candidly issues of physical or mental limitations and to seek to devise reasonable accommodations. The process requires current and complete medical information and bilateral, good-faith communications.” Allen v. City of Raleigh, 140 F.Supp.3d 470, 490 (E.D.N.C. 2015). While the lion’s share of case law has centered around management’s responsibilities within the interactive process, district courts in the Fourth Circuit have recently dismissed a number of cases upon finding that the employee did not carry her burden. The Maubach court recently observed, “[a]lthough the Fourth Circuit has not issued a published opinion addressing the obligation of employee—as opposed to an employer—to engage in the interactive process, the Fourth Circuit’s unpublished Crabill decision and multiple circuit courts in published opinions have held that an employer cannot be held liable under the ADA where it is the employee who refuses to engage in, or who causes the breakdown of, the requisite interactive process to determine a reasonable accommodation.” Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. 2018). In recent decisions within this circuit, various district courts have observed the following as relevant to their finding that the employee caused the interactive process to break down:

An employee refusing to speak with management about a requested accommodation unless an attorney was present and management’s policies did not permit an attorney’s presence during internal meetings;
Failing to return requested forms, including documentation to be completed by the healthcare provider describing the medical basis for a requested accommodation;
Asking for the right to sue after the filing of an EEOC charge instead of responding to an investigator’s requests for additional documentation; and
Refusing to “consider” alternative accommodations offered by management.

Allen, 140 F.Supp.3d 470 (relying on the Issues 1-3 identified above); Maubach, 2018 WL 2018552 (relying on Issue 4); Clark v. School Dist. Five of Lexington and Richmond Counties, 247 F.Supp.3d 734 (D.S.C. 2017) (finding a question of fact existed as to Issue 4). Not surprisingly, it has become a routine argument by management that an employee failed to carry her burden in the interactive process. Accordingly, counsel for the employee should take care that the employee participates in the communications surrounding a requested accommodation and provides sufficient explanation as to why any alternative accommodation is ineffective for the employee’s disability when an alternative accommodation is provided.

November 12, 2018/by Labor