For more information please call  800.727.2766


The Value of the Interactive Process and Other Important Lessons for Accommodating Employees with Disabilities

As we enter the thirtieth year of the Americans with Disabilities Act, employers continue to grapple with how to accommodate individuals with disabilities in the workplace. This article will address a recent case that illustrates just how badly this can go wrong and suggest some important best practices in the disability accommodation process.

The basics about disability accommodation rights and obligations

The American’s with Disabilities Act1 (ADA) is the primary federal law that prohibits employment discrimination on the basis of disability. The act includes an affirmative obligation to provide reasonable accommodations so that employees with disabilities can perform the essential functions of their jobs. Amendments to the ADA in 2008 clarified the broad range of disabilities covered by the law and shifted the focus for employers from determining whether someone has a covered disability to determining whether and how to provide reasonable accommodations. 

A reasonable accommodation is a modification to the environment or job that enables the employee to perform the essential functions (or primary duties) of the job. One way to think about it is that a disability creates a hurdle in the way of performing certain parts of the job. An accommodation removes that hurdle.2 If more than one accommodation will work, then the employer can choose. If no accommodation will work, the employee may not be entitled to continued employment. Employers are not required to provide accommodations that are unduly burdensome, but this is a very difficult standard to meet.

A $5.2 million verdict (EEOC v. Walmart, Oct 2019)

Paul Raina worked as a Cart Pusher for Walmart in Beloit, Wisconsin for 16 years. Raina has developmental disabilities, anxiety, visual impairment, and is deaf and mute. Per Walmart’s agreement upon hiring him, Raina performed his duties with the assistance of a publicly-funded job coach who shadowed him at work, acting as his “eyes and ears” by providing prompts and direction. According to the Complaint, in 2015, after 16 years of doing the same job, a new store manager suspended Mr. Raina, and instructed him to provide documentation of his need for accommodation and fitness to work.Raina’s guardian returned the completed paperwork, including certification from Mr. Raina’s physician, but according to the Complaint, Walmart never responded, despite repeated outreach from Raina’s guardian. Around that same time, Walmart ceased paying him and shut off his employee access.

In its defense, Walmart asserted that Raina was placed on leave pending a determination about his fitness to work, and that his guardian had dropped the ball in the process. Walmart also claimed that Raina could not return to work because his job coach had been performing his job duties for him, because Raina posed a danger to himself and customers, and because a permanent coach was not a reasonable accommodation (even when paid for by a third party) and posed an unacceptable liability risk to the company. Walmart’s motion for summary judgment was denied in December 2018 and, in October 2019, a jury returned a verdict in favor of the EEOC, awarding $200,000 in back wages to Raina and $5 million in punitive damages. 

This verdict sends a strong message about how Walmart’s treatment of Mr. Raina was viewed by the jury and highlights five key best practices that are worth remembering when managing requests for accommodations: 

Best Practice #1: Engage in a genuinely interactive process

When an employee has requested an accommodation, this triggers an obligation to either provide the requested accommodation or seek information to evaluate the need and feasibility of the request. This is called the “interactive process.” Often the accommodation is both feasible and obvious. Other times the requested accommodation may be burdensome or not clearly connected to the disability. Sometimes the employee doesn’t have an accommodation in mind, and instead just knows that a disability is getting in the way of doing the job.

This is where the interactive process comes into play. Specifically, the ADA contemplates a good faith interaction between the parties -- a back and forth of questions and information sharing relating to the limitations and capabilities of the employee, the needs and constraints of the employer, and the range of possibilities to make it all work. Although engaging in the interactive process is not required per se by the statute, failing to do so may result in punitive damages if an accommodation was possible, but the employer failed to provide it.

Here is a framework for the Interactive Process:

Step 1:  Identify the essential functions of the job. These are the core responsibilities, or the reason the job exists in the first place. A job description can provide a useful roadmap for the conversation, keeping in mind that job descriptions are not always a complete or accurate picture of the job. For non-essential tasks – those that are minor and not central to the role – if the employee cannot perform them even with an accommodation, then they should be reassigned to someone else.

Step 2:  Ask questions to understand the challenges that the employee is facing. The interactive process should start with a dialogue that focuses on understanding the difficulties that the employee is facing on the job as a result of the disability, e.g.:

  • How does the employee’s impairment interfere with performing the job?
  • What are the specific tasks that are being impacted?
  • What is the effect of the disability on each particular task?

Step 3:  Identify and evaluate potential accommodations:

  • What are the possible accommodations that will enable the employee to perform those duties?
  • How will the specific accommodation enable the employee to perform those duties?
  • Are there other accommodations that would be more feasible for the employer?
  • Take extra care to avoid bias, implicit or otherwise, by approaching the situation with an open mind and gathering as much information as possible from the employee.
  • What are the resources (e.g., medical providers, consultants, disability organizations) that can assist in identifying an appropriate accommodation?
    Note that the ADA permits (but does not require) employers to seek medical documentation to confirm that the employee has a disability (if the disability is not apparent) and to understand the functional limitations associated with the disability. This information should be sought to facilitate the interactive process, not replace it.

Step 4:  Implement the accommodation. Once an accommodation has been identified, it should be implemented promptly. Sometimes accommodations involve purchasing equipment or reconfiguring workspace. Be careful to ensure that an interim plan is in place while waiting for work orders to be completed and equipment to arrive. 

Step 5:  Evaluate whether it’s working. Even after an accommodation has been agreed upon, the interactive process is not over. The accommodation should be monitored to ensure that it is satisfactory for both the employer and the employee. If not, alternatives should be explored.   

In the Walmart case, it appears from the available record that Mr. Raina’s manager called a meeting with Raina’s guardian, told them Raina was suspended, gave them a standard accommodation form to be completed by Raina’s physician and then never spoke with either of them again. Whatever process the manager was attempting to effect, it was certainly not interactive. 

Best Practice #2:  Don’t put form(s) over substance 

While the ADA permits employers to seek input from the employee’s medical provider, this should be a tool for facilitating the interactive process, rather than a substitute for it. In the Walmart case, the employer’s reliance on forms and information from the medical provider may have come across as disingenuous because the company already knew that Raina was disabled and that he needed help to navigate the parking lot and greet customers. 

When accommodations are in place, but are not working, instead of requiring the employee to re-verify his disability and re-request an accommodation, another option is to start with a conversation: 

  • This isn’t working because [insert how the essential functions of the job aren’t getting done, or safety concerns]. 
  • We would like to explore alternatives. 
  • Do you have ideas? 
At this point, based on what the parties have learned, clarification from the employee’s medical provider may be helpful.

Lesson #3:  Act promptly and create a strong record of your efforts

The Walmart case also illustrates the importance of clear and well-documented communication. Walmart claims to have asked for clarification shortly after Raina’s guardian submitted the new paperwork. But the record lacks any evidence that this took place. Although dialogue is important to an effective interactive process, it is essential to follow up in writing with a summary of the conversation, along with next steps and who is responsible for them. This helps to avoid misunderstandings during the process and is critical to defending the employer’s actions after the fact.

Lesson #4:  Don’t go it alone

Engaging in the interactive process involves job analysis, job design, performance assessment, coaching and a basic understanding of the legal requirements. It may also involve interfacing with medical providers and service or equipment vendors. In short, don’t do this on your own. Many HR professionals have training and expertise to manage these issues effectively, or connect with the necessary resources to do so. Some companies have in-house disability specialists, while others retain consultants or legal counsel.

Lesson #5:  An ounce of compassion goes a long way

With all that said, there may be a more fundamental lesson about what went wrong in the Walmart case. The picture painted by the EEOC in its Complaint is of a person with an array of severe physical and cognitive challenges who found meaning and productivity in this world through his job of pushing carts. Then a new manager arrives and summarily sends him home, requires new paperwork to justify the job he’s been doing for 16 years, ignores repeated outreach from his guardian, and shuts off his company access. There is always another side to the story, but that’s not what carried the day for the jury. So perhaps another way to look at this case is through the lens of the value of compassion. Walmart may have had good reason for its actions. But it happened in the context – and to a person – where compassion was especially necessary, yet appeared to be lacking.

The Interactive Process is your friend

In summary, although the interactive process may seem burdensome at first glance, it is perhaps an employer’s most powerful tool for achieving both legal compliance and positive employee relations. Properly handled, by engaging in the interactive process, the employer builds trust by seeking to understand the employee’s needs. Emphasizing dialogue over a perfunctory exchange of paperwork communicates a sense of fairness that will facilitate mutual respect and a free exchange of ideas. And, if accommodations are not possible, the employee will be more likely to accept this as well. This process, coupled with prompt action, careful documentation, and an extra dose of compassion is a playbook for success.

1 42 U.S.C. § 12101 et. seq. (as amended).
2 Enforcement Guidance:  Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct 17, 2002).
3 Equal Employment Opportunity Commission v. Wal-Mart Stores Inc., et al., No. 3:2017-cv-00739, Opinion and Order (W.D. Wisc. 2018).