Atlanta, GA (WorkersCompensation.com) – An employer seeking to establish a breakdown in the interactive process better be ready to establish that it was responsive to the worker’s accommodation request.
As the 11th U.S. Circuit Court of Appeals ruling in Wilson v. Secretary of Veterans Affairs, No. 20-10799 (11th Cir. 06/03/22, unpublished) illustrates, an employer may fail to engage in the interactive process by discouraging or by not responding to or following up on an accommodation request.
A claims examiner for the VA who was also a veteran suffered from degenerative disc disease and partial paralysis in both feet. As a probationary employee, she was required to park one mile off-site and take a packed shuttle to her office.
The shuttle was infrequent and unreliable. Also, it was typically standing room only and possibly as shaky as the bus in a Harry Potter movie. Because the shuttle lacked handlebars, standing passengers were forced to either lean against another passenger or use their legs to steady themselves.
According to the examiner, the requirement to park off-site exacerbated her medical conditions. She therefore made six requests, between March and July 2009, for a parking accommodation that would permit her to park in the onsite garage.
In each case, the examiner was allegedly met with unresponsiveness, promises to assist that never bore fruit, and, in her view, outright denials. In fact, it was not until she filed an EEOC complaint that the tide changed in her favor. Just hours later, a VA official asked her to provide medical documentation to support her request. According to the VA, the examiner never responded.
The examiner sued her employer, claiming it violated Section 504 of the Rehabilitation Act by denying her a reasonable accommodation. The VA, in its turn, argued—successfully—that the examiner failed to engage in the interactive process when she neglected to provide medical documentation. The examiner appealed the federal District Court’s ruling in the VA’s favor.
In addressing the examiner’s claim, the 11th Circuit explained that after the VA was notified of the examiner’s disability and her request, it was obligated to make a reasonable effort to determine the appropriate accommodation. The court articulated the following four rules concerning accommodation requests:
- After an employer is placed on notice of the employee’s disability and accommodation request, it must make a reasonable effort to determine the appropriate accommodation.
- To identify the appropriate reasonable accommodation, the employer may need to initiate an informal,?interactive process?with the employee.
- Both the employer and employee are responsible for engaging in the interactive process. Either one, therefore, may be responsible for the process breaking down.
- An employer can cause a breakdown in the interactive process by discouraging, ignoring, or providing inadequate follow-up to an accommodation request.
Here, the court observed, there was a genuine issue as to whether the examiner, as the District Court held, caused the breakdown of the process by failing to respond to the VA’s request for medical documentation. In fact, the court held, there was evidence that the VA may have dropped the ball from the very outset.
The court observed that the examiner requested several times one specific accommodation—that she be allowed to park in the VA’s parking deck. “[The employee] repeatedly explained her reasoning and her request to a growing cast of VA personnel who either discouraged, ignored, or provided inadequate follow-up to her requests,” the 11th Circuit wrote.
At the very least, the court stated, there was a genuine issue as to whether the VA, rather than the examiner, was responsible for the breakdown. “It took the VA four months to even attempt to initiate the interactive process, despite being repeatedly placed on notice of [the examiner’s] disability and her request,” the court wrote.
Because a reasonable jury could conclude that the VA failed to engage in the interactive process, the court reversed the District Court’s ruling on the examiner’s discrimination claim.