Compliance Corner: Remember the Importance of the Interactive Leave Process

It bears repeating that when an employer is faced with an ADA accommodation request, it’s extremely important to engage in the interactive process and do it well. Why?

Take this recent settlement of a case brought by the EEOC concerning an outpatient surgery center in Virginia. In EEOC v. Northern Virginia Surgery Center, the plaintiff, a 52-year-old radiologic technician, requested an extension of her leave to continue her recovery after undergoing carpal tunnel surgery. Instead of considering all potential reasonable accommodations, her employer terminated her employment . . . and replaced her with two younger employees, aged 24 and 35.

The Equal Employment Opportunity Commission (EEOC) took the case themselves, suing her employer for a violation of the ADA, as well as an age discrimination complaint.

After protracted – and we’re sure, expensive – litigation, her employer ended up settling the case for $50,000 as well as a two-year consent decree which requires the company to revise its policies on the ADA and Age Discrimination in Employment Act (ADEA), and to provide training to its management on the ADA and ADEA.

So, what does this tell us?

First, (and apologies for sounding like a broken record), but the interactive process is so important and can make or break your case! And it’s not just about being responsive but also about being creative. The ADA would not have necessarily required this employer to extend the employee’s leave, particularly if there were other possible, reasonable and effective accommodations. From the record, however, it does not appear that the employer made any such suggestions. They simply fired her without engaging in an interactive process.

Second, it’s not uncommon to see another civil rights claim alleged along with the ADA retaliation and failure to accommodate claims.

In situations in which harm such as employment termination can be established, employers will often find themselves defending against multiple types of wrongdoing allegations. Please keep this information in mind and let your ADA Coach know if you have any questions or would like to discuss specific situations with them.