Interactive discussion should occur before employment decision

published in Oklahoma Employment Law Letter | May 1, 2013

By Charles S. Plumb

The Americans with Disabilities Act (ADA) requires you to consider the possibility of a reasonable accommodation to allow a disabled worker to maintain his employment. To satisfy the ADA’s reasonable accommodation requirement, an interactive discussion of potential accommodations must occur before you make any employment decision.

The injury and disability

David Gregor began working as a maintenance technician for Polar Semiconductor, Inc., in 2003. His job duties included maintaining equipment, evaluating assemblies and parts, auditing inventory, preparing maintenance specifications, and conducting repair and preventive maintenance of machinery that Polar used in its manufacturing of semiconductors.

As a result of a December 2009 injury, Gregor, who is right-handed, lost portions of his index and middle finger on his right hand. He had multiple surgeries to his hand that kept him from working, and Polar placed him on short-term disability leave. After he exhausted his Family and Medical Leave Act (FMLA) bank, Polar extended Gregor’s leave. His doctor reported he would be unable to return to work until at least July 1, 2010.

At that point, Polar’s HR manager, Deborah Roberts, told Gregor he had been terminated effective June 24, 2010. When Gregor asked to return to work in another position, Roberts said, “We don’t really do that. We have long-term disability.” According to her, Polar typically terminated employees after their short-term disability leave concluded and they exhausted their FMLA leave.

After Gregor’s termination, his physician released him to return to work but directed him to avoid pinching, fine manipulation, and using vibrating tools. Specifically, Gregor’s doctor stated he shouldn’t perform torquing, crimping, or any firm grasping with his right hand.

In a July 22 letter, Gregor told Polar that while he wasn’t able to return to his maintenance technician position, he wanted an accommodation to return to work as an equipment manager or in another position for which he was qualified. When Gregor was terminated, vacant positions included process engineering manager and chemical sustaining operator. Roberts told him he wasn’t qualified for any of the open managerial jobs and advised him to check Polar’s publicly accessible website for other vacant positions.

The interactive process

Gregor filed a lawsuit accusing Polar of failing to fulfill its accommodation obligations under the ADA. Inarguably, Gregor was “disabled” under the amended ADA. His diminished grip strength, inability to make torquing or crimping movements, and restrictions against using vibrating tools or carrying heavy objects constituted substantial limitations on his ability to perform manual tasks. The limitations (1) kept him from performing the essential functions of his job as a maintenance technician without an accommodation and (2) put the ball in Polar’s court to consider possible accommodations that would keep him employed.

Under the ADA, a reasonable accommodation can include restructuring the disabled employee’s job, modifying his work schedule, assigning him to a vacant position, and allowing him to use modified equipment, among other things. But what does it mean when the law says an employer must engage in an “interactive process” with an individual to explore the possibility of a reasonable accommodation? It means a two-way discussion between the employer and the individual. Keep in mind that the employer is the one responsible for initiating the interactive process. Any discussion should include identifying the disabled employee’s specific limitations and discussing and considering potential accommodations that would allow him to overcome those limitations. In this case, Polar’s interactive process with Gregor was insufficient.

First, at the time Gregor was terminated, Polar didn’t consider the vacant process engineering manager or chemical sustaining operator positions as options. More important, to the extent Polar engaged in any interactive process to attempt to accommodate Gregor’s limitations, the consideration and communication occurred only after he had been terminated. In other words, the discharge predated any discussion between Polar and Gregor about the possibility of an accommodation or a reassignment. For those reasons, his failure-to-accommodate claim will be decided by a jury. Gregor v. Polar Semiconductor, Inc., Case No. 11-3306 (Minn., 2/13/13).

Don’t make the same mistake

Learn from Polar’s missteps. It’s always the employer’s obligation to initiate the discussion with a disabled employee about possible accommodations. Those discussions, which should include pinning down limitations and restrictions and talking about accommodation and employment options, always must precede the decision to terminate an employee based on his physical limitations.