Recently, the 10th Circuit Court of Appeals reached a decision that significantly expands employers’ potential liability for disability lawsuits.

The Americans with Disabilities Act requires employers to reasonably accommodate qualified, disabled individuals, so long as the accommodation does not result in an undue hardship for the business. Employers must engage in an interactive process with an individual to explore the possibility of a reasonable accommodation. That means discussing with an applicant or employee the nature and extent of any limitations imposed by a health condition, the responsibilities of the job, and whether potential accommodations are available or result in an undue hardship.

In the 10th Circuit case, a county health inspector in Colorado was unable to complete her quota of inspections due to a broken arm that required extensive treatment. She sued her employer, claiming, among other things, that they did not engage in the interactive process and unlawfully failed to reasonably accommodate her disability.

In most employment discrimination claims, a plaintiff must demonstrate they suffered an “adverse employment action,” such as failure to hire, termination, demotion, suspension or the like. This court went another direction, making a distinction between disability discrimination cases and cases alleging an employer had failed to reasonably accommodate a disability. For discrimination lawsuits, a disabled individual needs to establish they were fired, demoted, disciplined or the like. On the other hand, this appeals court ruled that plaintiffs claiming an employer did not reasonably accommodate their health condition need only show the employer failed to fulfill their ADA obligation to explore possible accommodation through the interactive process.

This decision lowers the bar for the types of ADA lawsuits that can be filed against employers. It means a disabled employee can sue an Oklahoma employer for failing to reasonably accommodate their health condition or explore that possibility, even if they didn’t suffer any adverse employment action. Because other courts around the country have answered this question differently, this issue is likely to be settled by the U.S. Supreme Court. In the meantime, here are some guidelines for Oklahoma employers:

• Put in place updated disability policies that affirm your commitment to non-discrimination and reasonable accommodation.
• Educate your supervisors so they understand the reasonable accommodation obligation.
• Train supervisors and HR personnel on the accommodation and interactive process.
• Keep track of how you address accommodation issues and the interactive process, particularly when you conclude accommodation is not feasible and imposes and undue hardship.

This article appeared in the November 5, 2020, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.