EMPLOYEE WHO FAILS TO COOPERATE IN INTERACTIVE PROCESS CANNOT PURSUE DISABILITY DISCRIMINATION CLAIM

As we all know, absent an undue hardship, an employer is required to provide reasonable accommodations to enable employees with disabilities to perform the essential functions of their job positions. In order to do so, employers are often required to engage in the "interactive process," working with the employee to identify an appropriate workplace accommodation. If the employer fails to engage in this process in good faith, it may open itself up to exposure under the Americans with Disabilities Act (ADA).

In a recent case, the Montana Supreme Court reminded us that the employee is also required to participate in the interactive process, and the failure to do so may torpedo the employee's ADA claims.

In Alexander v. Montana Development Center, (Nov. 13, 2018), the plaintiff filed a claim for the failure to accommodate under the ADA. The plaintiff had been employed as a shift manager for an intensive, short-term treatment facility for individuals with intellectual disabilities and mental illnesses. In his position, the plaintiff was required to physically restrain clients as necessary, which could lead to physical confrontations. After one such incident, the plaintiff injured his shoulder and underwent surgery. Ultimately, it was determined that his shoulder could not recover further, and he was issued permanent medical restrictions prohibiting him from restraining clients.

At that time, the plaintiff and the company sat down to discuss potential accommodations. The employer asked whether a shoulder brace would allow him to safely restrain clients again; the plaintiff's doctor, however, concluded that a shoulder brace or other support offered him no significant protection from reinjury.

The employee then proposed an alternative accommodation, asking the company to staff at least two direct support professionals with him at all times to ensure that he would not have to engage in further physical confrontations with clients. After evaluating the request, the company found that this proposal was unworkable as a practical matter.

Having determined that there was no way to alter the employee's current job that would allow him to perform the essential functions of the position, the employer and the employee began discussing alternative positions within the organization. The company offered to research and identify vacant positions once the employee informed the company of his qualifications, education, and training. It also advised the employee to check job positions posted internally through weekly bulletins and publicly through the State of Montana website. The company also identified two vacant positions, including a maintenance position and a data control technician position. The employee indicated that he felt unqualified for the data control technician position, and he did not follow up regarding the other available vacant position. Likewise, he did not inform the company of his qualifications, education, and training, nor did he propose any additional accommodations that would allow him to continue his employment.

Ultimately, because an available accommodation could not be identified - and also because the employee did not work with the company further to identify a vacant position he was qualified to fill, the employee was terminated in November 2015. He then filed a claim for disability discrimination under the ADA. After the district court dismissed the plaintiff's claims, he appealed to the Montana Supreme Court.

In the end, the Court agreed that the plaintiff did not have a viable claim under the ADA. In an accommodation case, the employer and employee have "a shared goal to 'identify an accommodation.'" The Court found that the company acted in good faith to assist in the search for a reasonable accommodation; the company evaluated the possibility of a shoulder brace, considered a proposed accommodation requested by the employee, and evaluated the possibility of reassignment to an alternative position. However, "[the plaintiff's] failure to communicate further with [the company] caused the interactive process to break down." He failed to provide the company with information regarding his qualifications; he did not follow up with respect to a proposed open position; and he did not inquire further about any other vacant positions that might be available. As such, the Court found, "the subsequent break down in the interactive process is solely attributed to [the plaintiff]."

The Alexander case is a simple reminder to employers that, when engaged in the interactive process under the ADA, they should be at all times open to further discussion as to available accommodations, whether they be changes to the employee's existing position or reassignment to other available jobs. You never want to be the entity that walks away from the interactive process. In the Alexander case, it was the employee who walked away from the interactive process, and that made all of the difference in the case.

If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or mnicely@ehhlaw.com.