In recent years, an increasing number of lawsuits filed under the Americans with Disabilities Act (ADA) have focused on the employer’s obligation to participate in an interactive process to determine whether there are reasonable accommodations that will allow the employee to perform the essential functions of his or her job. Plaintiffs claim that the employer never seriously engaged in the interactive process or failed to fully consider accommodation requests made by the employee.

In a new decision from the Tenth Circuit Court of Appeals, Norwood v. UPS, the plaintiff was a division manager who began struggling with memory issues that led to her being placed on a performance improvement plan. She then advised UPS that these performance deficiencies resulted from mental disabilities and requested that she be allowed to record meetings in order to assist with her memory problems. UPS initiated its ADA accommodation process and concluded that the recording option was not reasonable due to the potential for disclosure of proprietary business information. The accommodation committee internally discussed alternatives such as a designated note taker for the plaintiff, but when it initially met with her to discuss issues with the recording request, it did not mention these alternatives. The plaintiff resigned shortly thereafter and filed suit, alleging failure to accommodate under the ADA.

In her suit, the plaintiff claimed that UPS had engaged in bad-faith negotiations because it did not immediately disclose the potential alternative accommodation. Instead, the company explained its concerns over her recording proposal and asked her for her reaction to these issues, including more information on which meetings she needed help with.

The Tenth Circuit affirmed the dismissal of the claim, noting that the ADA does not require that the employer immediately disclose all potential alternative accommodations to an employee during the initial stages of the interactive process. UPS continued discussions with the plaintiff up to the date when she indicated her decision to retire. The company worked with the plaintiff to determine how she could return to work, but she insisted on the recording option as the only accommodation that would address her issues.

Employers facing accommodation requests from employees should carefully review alternatives and document the interactive process. However, as the case demonstrates, the ADA does not require employers to immediately disclose all possible accommodations it has internally discussed.