An Employer is required to initiate an interactive process with an employee that the employer (1) knows that he employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.” In other words, employers must recognize the need for accommodation even in the absence of an employee request.

The employer must have notice that the employee has a “disability.” Notice provided to supervisors or managers will be imputed to the employer. Notice may come from the employee directly, or from the employee's family members, friends, health professionals or other representatives. It may also come as a result of administering FMLA leave or a workers' compensation claim. This notice does not need to disclose the employee's specific condition. For example, it is sufficient if the employer receives notice of treatment needed by an employee. Notice may also come in the form of objective proof, such as sudden or increasing inability to perform job functions or other physical manifestations of symptoms that are readily observable to others in the workplace. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation.  An employer also cannot ignore these things simply because an employee has been cleared to return to work – with or without restrictions.

The employer must also have notice of the employee's desire to obtain some type of accommodation. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. This is particularly true if the employer has no indication the disability is impacting the employee's ability to perform his or her essential job functions. Notice of an employee's desire for an accommodation can take a variety of forms, including notice that the employee wants to remain employed (in some capacity). The standard of proof required here is low: when an employee continues to come to work, and continues to perform at least some of his or her essential duties, employers are encouraged to proceed with the interactive process.

Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process.  While employers may have policies instructing their employees to provide written notice of the need for an accommodation, the employer cannot ignore verbal, visual or other cues.

Once the employer has notice of a disability and the need for an accommodation, the employer is required to have (1) direct communication with its employee to explore in good faith the possible accommodations; (2) consider the employee's request; and (3) offer an accommodation that is reasonable and effective.

Employers must also act promptly to initiate this discussion.  The failure to engage in the interactive process may prevent an employee from receiving a reasonable accommodation, and may therefore result in liability under the law.