The Duty of Dialogue

The Concern About Inquiries

Under the ADAAA and likely new regulations, employers will be forced in many instances to shift their thinking from questioning whether an employee is disabled to whether and what type of accommodation is warranted. However, often employers become paralyzed by fear of the ADA's implications. Moreover, many employers have been drilled extensively on actual and imagined restrictions imposed on inquiries about potential disabilities. They fear doing something impermissible or something that will be used to prove that they "regarded" the employee as disabled - either way inviting ADA challenges and liability.

Job-Related Inquiries Are Permissible

Once an employee brings a potential disability to the employer's attention, or an impairment is having an obvious effect on his or her performance thus putting the employer on notice, the restrictions on inquiries are more relaxed. The employer can make job-related inquiries consistent with business necessity. A legitimate purpose of such inquiries is to determine the extent of the employee's limitations. This, in turn, largely will provide the basis to determine whether the employee is covered by the ADA and, if so, what reasonable accommodations are available and appropriate.

Individualized Inquiries Are Required

The ADA, and now the ADAAA, requires individualized inquiries to determine whether an employee is protected. Courts at all levels have recognized this. The EEOC's implementing regulations further recognize that "it may be necessary" for an employee to determine appropriate reasonable accommodations. Some courts have held that a dialogue with the employee is mandatory. Other courts recognize that the effort is unnecessary in instances where it is readily apparent that the employee cannot perform the job duties with or without reasonable accommodation. But virtually all courts deem this interaction necessary in cases where the employee's capabilities and limitations are not obvious.

In short, the employer very often must talk with an employee specifically about his or her condition and limitations in order to make an educated assessment of the employee's rights and the employer's obligations under the ADA. In this context, the discussion is job related and a matter of business necessity, and therefore permissible. Indeed, an employer's failure to have such discussions, in most instances, erodes the employer's ability to conduct the required individual assessment. Thus, it often is a legal as well as practical requirement.

Opening a dialogue to learn more about an employee's limitations is not the same as regarding the employee as disabled. Rather, it is a matter of satisfying the employer's legal obligation to determine the necessity and nature of any reasonable accommodations. At most, the employer regards the employee as limited in some way. This is what starts the process and necessitates the dialogue to begin with, and it is not illegal.



Posted by Thamer E. "Chip" Temple III