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Failure to Engage in Interactive Process a Violation of the ADA

    Client Alerts
  • July 20, 2007

Earlier this month, the Eighth Circuit Court of Appeals found that an employer failed to engage in the interactive process under the ADA and failed to reasonably accommodate an employee who requested a modified work schedule.  In EEOC v. Convergys Customer Management Group, Inc., the employer was held liable for not modifying its attendance policy for an employee confined to a wheelchair with brittle bone disease.  The employee was late to work and returning from lunch breaks, which was in violation of the company’s tardy policy.  The employee was always on company property before the start of work, but due to no accessible parking close to the entrance, he often had a long maneuver through the parking lot.  Additionally, the company’s inaccessible facility made it difficult for the employee to get to and from restrooms or lunch in a timely fashion.  After accumulating many tardiness demerits, the employee asked the company for “a grace period” after lunch to return to work.  The request was denied and the employee was fired for excessive tardiness.  At trial, the jury awarded $114,000 in lost wages and compensatory damages.

The Eight Circuit affirmed the decision, rejecting the company’s argument that the employee was required to request a specific accommodation.  The Court found that the employee had provided the company all the necessary information relevant to his disability and the company was obligated to explore possible reasonable accommodations.  Specifically, the Court held that the company was unable to show that a modified work schedule (a 15-minute grace period) would eliminate the company’s punctuality requirement.  The additional 15-minutes would have merely created a different time for the employee to return from his lunch break.  The Court pointed out that the ADA itself recognizes extra time as a reasonable accommodation.  “[R]easonable accommodation may include . . . job restructuring; part-time or modified work schedules.”  42 U.S.C. § 12111(9)(B).  Employers should be prepared to engage in the interactive process with employees requesting modified work schedules before denying the employee’s request.