The year end is a time for reflection, and one theme in my practice this year has been the failure of managers (and some HR professionals) to fully understand the interactive process, and to inadvertently cause liability by imposing a 100% healed policy.
Here’s how it often works. An employee goes out for a medical issue, sometimes work-related, sometimes not. At some point the employee reaches out about returning to work with some sort of restrictions.
- The manager believes these restrictions will prevent the employee from performing the job as needed, emails HR and indicates an inability to accommodate the restrictions, and the HR manager takes the manager at her/his word.
- It is communicated back to the employee that she/he can’t return to work until 100% healed, or fully able to do the job, or similar words.
- What we have here is a documented example of failure to engage in the interactive process, which equals liability. Not helpful.
Here’s how it should work. The same employee raises a medical issue and reaches out about returning to work with some restrictions.
- The manager partners with HR to get more details on those restrictions, clarify the scope of those restrictions with the employee as needed (i.e. interact), and documents those discussions.
- They review the job description (if one exists) to see what is listed as an essential function of the job, understand how others have been accommodated (or not accommodated) in similar situations, and evaluate whether the employee can or cannot perform the essential functions of the job with any accommodation (whether requested or not).
- They further discuss with the employee (i.e. interact) and document those discussions.
- Care is taken to be consistent with accommodations granted (or not granted).
- No one uses the term 100% healed.
- What we have here is a documented example of engaging in the interactive process, which should equal no liability. Very helpful.
While both scenarios can yield the same result, one is a trigger for liability, and one is a great defense to a disability discrimination or failure to accommodate/engage in the interactive process claim. The choice is yours. And remember, if at first you don’t succeed, try, try again!