The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to persons with disabilities unless doing so would impose an undue hardship or pose a direct threat to the safety of the employee or others. ADA regulations provide that in order to determine an appropriate reasonable accommodation, it may be necessary for the employer “to initiate an informal, interactive process with the individual with a disability in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3). Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation.

The EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act provides that “as a general rule, the individual with a disability – who has the most knowledge about the need for reasonable accommodation – must inform the employer than an accommodation is needed.” The request can be made verbally or in writing. The employee does not need to use any magic language when making the request, and need not reference the “ADA” or specifically use the term “reasonable accommodation.” This notice triggers the employer’s obligation to initiate the interactive process.

Employer’s duty to recognize the need for accommodation

Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. The EEOC’s guidance provides that “an employer should initiate the reasonable accommodation interactive process without being asked if the employer (1) knows that he employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.” In other words, employers must recognize the need for accommodation even in the absence of an employee request.

So when, exactly, does an employer have adequate or sufficient notice to initiate the interactive discussion without receiving a request for accommodation from the employee? Court decisions interpreting the ADA provide some general principles.

First, the employer must have notice that the employee has a “disability.” Notice provided to supervisors or managers will be imputed to the employer. Notice may come from the employee directly, or from the employee’s family members, friends, health professionals or other representatives. It may also come as a result of administering FMLA leave or a workers’ compensation claim. This notice does not need to disclose the employee’s specific condition. For example, it is sufficient if the employer receives notice of treatment needed by an employee. Notice may also come in the form of objective proof, such as sudden or increasing inability to perform job functions or other physical manifestations of symptoms that are readily observable to others in the workplace. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation.  An employer also cannot ignore these things simply because an employee has been cleared to return to work – with or without restrictions.

Second, the employer must also have notice of the employee’s desire to obtain some type of accommodation. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. This is particularly true if the employer has no indication the disability is impacting the employee’s ability to perform his or her essential job functions. Notice of an employee’s desire for an accommodation can take a variety of forms, including notice that the employee wants to remain employed (in some capacity). The standard of proof required here is low: when an employee continues to come to work, and continues to perform at least some of his or her essential duties, employers are encouraged to proceed with the interactive process.

Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. Never assume an employee is disabled. While employers may have policies instructing their employees to provide written notice of the need for an accommodation, the employer cannot ignore verbal, visual or other cues. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. Once the employer has notice of a disability and the need for an accommodation, the ADA requires “(1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation that is reasonable and effective.”

Employers must also act promptly to initiate this discussion. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA.  But failure to engage in the interactive process may prevent an employee from receiving a reasonable accommodation, and may therefore result in liability under the ADA.