Eighth Circuit Redefines “Interactive” Process and Its Relation to Termination


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

The trend in the federal courts is to require that an “interactive process” be invoked when issues arise related to accommodation under the American with Disabilities Act. In Peyton v. Fred’s Stores of Arkansas, the Eighth Circuit Court of Appeals reviewed the interactive process (which simply means a back and forth discussion) in the context of an employee who had limitations on her ability to perform the duties of her job.

The Plaintiff in Peyton was hired and began her work about a month later. After being at work for three days, she experienced pain which was subsequently diagnosed as cancer. She underwent surgery six days later. Within 2 or 3 days following the operation, the area manager for the employer called the Plaintiff twice and asked how the store could accommodate her. The Plaintiff responded that she did not know how long she would be out. Because she was on pain medication at the time, the Plaintiff had no recollection of any discussion regarding accommodation. Following those phone calls, the decision was made to replace the Plaintiff, and she was terminated two  days later.

The Court noted that in order to determine whether an accommodation for an employee is necessary, and what accommodation might be called for, it is necessary that the employer and employee engage in an “interactive process.” They pointed out that normally the employee must establish: (1) the employer knew about the disability; (2) the employee requested accommodations for the disability; (3) the employer did not make a good faith effort to assist the employee in seeking those accommodations; and, importantly, (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

The Plaintiff acknowledged that she had not initiated the interactive process, but maintained that it was incumbent upon the employer to do so because she was still hospitalized and heavily medicated. Without addressing that question, the Court noted that Plaintiff was prevented from performing the duties as a store manager during the six months of chemotherapy which followed her surgery. The Plaintiff admitted that she had no idea when she spoke to the area manager when, if ever, she would be able to return to her job duties. She stated that she thought the employer should have waited indefinitely to determine the full extent of her diagnosis, treatment and recovery, and then made its decision.

The Court rejected that claim, noting that employers should not be burdened with guesswork regarding an employee’s return to work after an illness. It concluded that Plaintiff’s illness caused her to be unable to perform the essential functions of her job as a store manager, and that there was no reasonable accommodation that would have allowed her to do so. Accordingly, her discharge was upheld.

The Court apparently concluded that it did not have to address the issue of the interactive process, since the Plaintiff herself admitted that she could not have performed the duties of her job for six months. It concluded that her request for an indefinite leave of absence was not a reasonable accommodation under the ADA. The issue, then, of the extent to which the employer must go to initiate the interactive process with an impaired employee was left unanswered. Employers are cautioned that they should err in the direction of initiating the interactive process themselves rather than casting that burden on the employee.

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