When an employee has a disability that affects their work, an employer must explore all reasonable options to ensure the employee remains employed and remains healthy. Legally speaking, there is a specific process an employer needs to undertake with an employee who has a disability and needs what is known as a reasonable workplace accommodation. The undertaken is known as an “interactive process.”
Definition of Interactive Process
“Interactive process,” as set forth in the California Code of Regulations, means timely, good faith communication between the employer or other covered entity and the applicant or employee or, when necessary because of the disability or other circumstances, his or her representative to explore whether or not the applicant or employee needs a reasonable accommodation for the applicant’s or employee’s disability to perform the essential functions of the job, and, if so, how the person can be reasonably accommodated.
Both California’s Fair Employment and Housing Act and the Americans with Disabilities Act require an employer and an employee to participate in a timely, good-faith interactive process in determining what, if any, reasonable accommodations exist that would enable a disabled employee to remain employed.
The trend in California’s courts is to impose liability on employers for failing to engage in the interactive process when a reasonable accommodation existed that would have enabled the employee to perform the essential functions of the job. (Fair Employment and Housing Act; Barnett v. U.S. Air, Inc.; Jensen v. Wells Fargo Bank)
Is It Always Necessary to Initiate an Interactive Process?
There are scenarios wherein an employer is not required to engage in an interactive process with a disabled employee or applicant. What triggers the need for an interactive process is knowledge on the part of the employer that the employee may have a condition that might qualify as a disability resulting in some limitations that may require an accommodation. Per Cal. Code Regs. §11064 – 11073, once the employer is in possession of this knowledge, the process requires the employer and employee to identify and assess potential accommodations that would enable the employee to perform the essential functions of the position. If the initial accommodation is failing, the employer is obligated to continue with the interactive process to determine if any other accommodations exist that will permit the employee to perform the essential functions of the job.
An interactive process is only required when needed to identify or implement an effective, reasonable accommodation for an employee or applicant with a disability. If an employer is willing to accommodate a specific request on the spot or the employee is not in need of any accommodations to perform their essential job functions and/or to enjoy the benefits of their employment, no interactive process is required.
My Employer Never Sat Down with Me to discuss My Return to Work – Is that Right?
The interactive process can occur in a number of different ways. These include:
- Face-to-face conversation
- Some other types of dialogue
- Some other form of communication
During this interactive process, an employer should explore an employees’ experience, skill set, or ability to perform not just their original duties, but also any modified ones that still fall within their essential job functions.
What is an Employee’s Responsibility During an Interactive Process?
There are a number of different steps an employee must take during an interactive process.
Obtain and Provide Employer Documentation
- The most important thing to remember is to always provide reasonable medical documentation where the disability or need for accommodation is not obvious and is requested by your employer. If you don’t tell them what difficulty you’re facing, they can’t figure out how to accommodate you.
- Make sure the medical information you provide your employer specifics the existence of a FEHA disability, which puts your employer on notice of the need to accommodate. It should be noted that this does not require for you to disclose all private and confidential information. If your employer continues to claim they have not received sufficient medical information, contact us.
Keep the Conversation Going with Your Employer (If at All Possible)
- The interactive process is a two-way street and an employee must make sure to be reasonably responsive to requests made of them.
- This does not mean you have to accept the options that are immediately provided to you. Often employees are met with a “Take-it-or-leave-it” attitude and left not knowing what to do. It’ll be important to speak to an attorney to know whether or not your employer has met its obligation.
Do I Have to Accept Whatever My Employer Suggests as an Accommodation During an Interactive Process?
Absolutely not. The term reasonable accommodation applies to both sides, so whatever accommodation is offered must take into consideration your rate of pay, location, responsibilities, and how it may affect your health.
The law is that an employer shall not require a qualified individual with a disability to accept accommodation and shall not retaliate against an employee for refusing an accommodation. However, the employer or other covered entity may inform the individual that refusing an accommodation may render the individual unable to perform the essential functions of the current position
Human Resources Maintains My Medical Note is Not Enough – What do I do?
While you are not required to disclose private or confidential information, there are times where a simple doctor’s note may not be enough.
Documentation is insufficient if it does not specify the existence of a FEHA disability and explain the need for reasonable accommodation. Where relevant, such an explanation should include a description of the applicant’s or employee’s functional limitations to perform the essential job functions.
Documentation also might be insufficient where the health care provider does not have the expertise to confirm the applicant’s or employee’s disability or need for reasonable accommodation, or other objective factors indicate that the information provided is not credible or is fraudulent.
This type of situation underscores the necessity of retaining the services of an experienced employment law lawyer adept at meeting the challenges presented by an employer in regard to such matters as an interactive process. In other words, you should not shrug off the vital importance of an interactive process and conclude that the time has not yet arrived to retain legal representation.
Interactive Process Considerations (In a Nutshell)
If an employee chooses not to disclose their disability to their employer and doesn’t require a reasonable accommodation in order to perform their essential job-related duties and enjoy the benefits of their employment, there is no need for an interactive process. However, if an employee’s injuries have made it difficult or impossible to engage in work successfully, it is important for an employer to initiate an interactive process. This process allows employers to better understand how to support an employee’s need for accommodation and to engage in a solution-focused dialogue.
Most of the time, the interactive process helps to ensure that disabled workers can remain employed. In the event that reasonable accommodations can’t be made for a worker without causing an employer an undue burden, it may be possible to retrain the worker, to transition them to a vacant position, or to otherwise facilitate ongoing gainful employment of the affected worker in an altered capacity.
Employers who fail to engage, in good faith, in the interactive process may be held legally liable for their inaction. Depending on the nature of the worker’s circumstances, failure to adequately engage in an interactive process may serve as evidence of disability discrimination.
You can schedule an initial consultation with an experienced employment law attorney from Eldessouky Law today by calling (714) 409-8991. Our firm charges no fee for an initial consultation and case evaluation with our caring, committed legal team.
