Employers know that the Americans with Disabilities Act requires them to engage in an “interactive process” with employees seeking a reasonable accommodation. This is a back-and-forth discussion to determine the employee’s specific limitations and what, if any, accommodations are reasonable to allow the employee to still perform the essential functions of the job. Recently, the Tenth Circuit — the federal appeals court that handles Oklahoma cases — gave clarity to that process. It held that the ADA interactive process does not require a formal definitive offer of an accommodation by the employer to the employee. Rather, an employer may meet its burden to engage in the interactive process by informally asking the employee if a potential accommodation would work.

Norwood v. UPS

Susan Norwood worked for United Parcel Service, Inc. as a division manager where she oversaw operational safety, service, and performance. As part of her duties, she was required to remember and document daily conversations. After the death of her parents, her mental health declined and she was unable to memorize the necessary information her job required her to document. Ultimately, she  had an anxiety attack following a meeting where she was placed on a performance improvement plan. She then sought medical leave and requested an accommodation.

UPS worked with Norwood, including through the exchange of frequent emails with her, and an accommodation committee meeting was held to determine what accommodations it could  potentially offer. Norwood repeatedly requested that she be allowed to audio record conversations. However, UPS denied this request because her job duties required her to deal with confidential and proprietary information. Instead, UPS in emails whether a notetaker would suffice. It also said that Norwood would have to identify what meetings would require an agenda or a notetaker. Norwood never answered and subsequently retired.

Norwood filed an EEOC charge and eventually sued UPS. She argued that UPS did not offer her a reasonable accommodation and acted in bad faith. Specifically, she claimed that the question about providing a notetaker was not actual offer of an accommodation. On appeal, the federal appeals court found in favor of UPS, ruling that an employer need not always offer a specific accommodation. It stressed that the interactive process requires back and forth, and that an employer asking if a potential accommodation was suitable could meet the employer’s ADA obligations.

Employer takeaways

This case reminds employers that the interactive process is a two-way street. The evidence showed that UPS was actively in communication with Norwood. The multiple emails showing the specific questions UPS asked Norwood were particularly helpful to the employer’s defense. UPS also explained to Norwood why her request to audio record everything was not reasonable. More still, UPS did not stop there, but continued to find a possible solution that would allow Norwood to do her job. Employers would be well advised to:

1. Put all accommodation requests and discussions in writing. Even if discussions take place verbally, sending a confirmation email can help provide evidence of the employer’s good faith attempt to engage in the interactive process.
2. Ask questions about what accommodations may work. Of course, the company should be willing to offer one of those accommodations if the employee accepts.
3. Remember that the employer does not always have to provide the accommodation the employee requests. However, if it refuses the employee’s request, it should be able to reasonably explain why the employee’s request is not reasonable. Remember, mere inconvenience and marginal costs are not sufficient to deny a reasonable request.
4. When possible, consult legal counsel and other necessary individuals to determine what accommodations are reasonable. Determining what accommodations may be reasonable can be notoriously difficult. HR managers may need to get specific information from supervisors as to what accommodations would actually work. Confirming with legal counsel whether the company is adequately engaging in the interactive process can also help protect the company if the employee later files a charge of discrimination or lawsuit.

• Norwood v. United Parcel Service, No. 21-3145 (10th Cir. 2023)