We typically avoid reporting on cases that involve procedural issues primarily of interest to trial lawyers. However, once in a while, a procedural decision can have significant impacts on how employers structure their human resources operations. An example of one such case comes from a recent decision by the Ninth Circuit Court of Appeals. The court concluded that the plaintiff – and not the employer – maintains the burden of proving the availability of a reasonable accommodation, even if the employer did not take advantage of the interactive process under the Americans with Disabilities Act.
 
In Snapp v. Burlington Northern Santa Fe Railway Co., the plaintiff suffered from sleep apnea and was placed on long-term disability. When he declined to participate in a subsequent sleep study, the long-term disability carrier threatened to end his benefits. The plaintiff alleged that his employer subsequently terminated him without providing a reasonable accommodation under the ADA. The trial court dismissed the claim on summary judgment, but the Ninth Circuit reversed this decision, finding a factual issue of whether he ever requested a reasonable accommodation. On remand, the plaintiff sought a jury instruction that would have placed the burden of proof on the employer through trial as to whether it could have accommodated the disability. After losing on the motion and the trial, the plaintiff again appealed to the Ninth Circuit, this time questioning the jury instruction on the burden of proof.
 
The Ninth Circuit rejected this second appeal, affirming the jury verdict. The plaintiff argued that under the Supreme Court’s Barnett decision, employers that fail to take advantage of the interactive process to explore accommodations bear the burden of proof through trial as to whether there were any available measures which could have been taken. The court disagreed, limiting the impact from not engaging in the interactive process to the summary judgment stage, and not at the trial itself. Almost every federal court considering this question has concluded that at trial, the plaintiff must demonstrate the availability of a reasonable accommodation not provided by the employer.
 
Had the court ruled for the plaintiff, this would place employers in an almost impossible position. If an employer failed to engage in the interactive process, it would virtually have to prove a negative – that there are no reasonable measures that could have allowed the employee to return to work. While this case reinforces the importance of engaging with employees facing medical issues relating to work performance, companies that fail to take advantage of this opportunity will not face an insurmountable legal hurdle when later called upon to defend their decisions.