Here is how the interactive process works under the Americans with Disabilities Act

This case highlights a loophole in the Americans with Disabilities Act that employees may be unaware of. The Court of Appeals affirms the grant of summary judgment where the plaintiff had to miss work because of a disability. She loses because she cannot show there was a way for her employer to reasonably accommodate her, and plaintiff rejected a position that management did offer to her.

The case is Barton v. Unity Health System, a summary order issued on May 28. Plaintiff was a dental hygienist. She was unable to work because of her disability. When her doctor cleared her to resume working in February 2013, she wanted to be transferred to one of two positions that became available during her medical leave. That can be a good argument in an ADA case. But it does not work here, because plaintiff did not update her employer about her condition while she was out on leave, which means her employer did not know whether or when she might be cleared to return to work. Nor did management know what restrictions might enable her to return to work.

This analysis applies a rule unique to disability discrimination cases: the interactive process. Under the ADA, if the plaintiff wants her employer to accommodate her disability, the employer should initiate the discussion by identifying positions that she might be able to fill. The employer then has to negotiate with the employee in good faith to see if that position will work for the plaintiff. But it does not look like plaintiff initiated the interactive process, leaving management in the dark about how to proceed. As the Court of Appeals (Cabranes, Walker and Hall) writes:

That Barton might have broached the possibility of a transfer as early as May 2012 is of no consequence. The Americans with Disabilities Act “envisions an interactive process by which employers and employees work together to assess whether an employee’s disability can be reasonably accommodated.” The evidence shows that Unity was prepared to engage in an interactive process when Barton went on indefinite medical leave in June 2012. After that point, however, Unity was unable to investigate Barton’s concerns, learn more about her disability, or discuss with her various potential accommodations. In the circumstances, Barton’s transfer request does not resemble the first step in an interactive process so much as an attempt to short-circuit whatever process Unity might ordinarily undertake.

What also hurts plaintiff's claim is that, when she sought to return in February 2013, Unity reviewed its vacancies and offered Barton a dental secretary position at one of its other locations. Barton rejected the position. "Though dental secretaries and dental hygienists perform different tasks, the new role would have allowed Barton to remain with Unity, maintain her seniority, and apply for any dental hygienist vacancies that arose in the future. In the circumstances, it appears that Unity made a good-faith effort to accommodate Barton. The law requires no more."