Failure to Engage in the Interactive Process

The Interactive Process Under California's Fair Employment and Housing Act (FEHA)

California employers have a duty to engage in a good faith interactive process with employees who request reasonable accommodations for their disabilities. This process involves discussing the employee’s needs and identifying potential accommodations that would enable them to perform their job effectively.

Under California’s Fair Employment and Housing Act and the Americans with Disabilities Act, an employer must engage in an interactive process with any employee’s request to identify reasonable accommodations to ensure that employee is able to retain his or her position of employment with the organization. The interactive process helps employers understand how they may empower their employees to perform the essential functions of their position and provide reasonable accommodations to achieve those objectives.

However, failing to engage in the interactive process may subject an employer to penalties and fines and put a disabled employee at a marked disadvantage by preventing him or her from having the tools necessary to perform the essential functions of their job position.

How an Employee's Disability Triggers the Interactive Process

Under California law, the interactive process is triggered at such a time when the employer learns that an employee may have a physical disability or mental impairment that impedes their ability to perform any essential functions of his or her job.

Specific instances that would qualify towards an employer learning of an employee’s disability include the following:

By verbal or written employee requests
By request from a friend, family member, healthcare professional, or other individual authorized to make such a request on behalf of the disabled employee.
When the employee sustains a workers’ compensation injury
When the employee makes specific requests for reasonable accommodations or makes a reference to limitations affecting the employee’s ability to perform the duties of the job.

When a supervisor, manager, director, or other individual in a management role observes the employee’s limitations that are impeding the employee’s performance of his or her job duties.
When an employer is made aware of any work restrictions from a medical provider pertaining to the employee and his or her job functions.

Employer Responsibilities Throughout the Interactive Process

Accommodation requests or disclosure of an employee’s disability triggers the interactive process and it is now the employer’s obligation to initiate and engage in that process promptly and with constructive participation. Once an employee requests effective accommodations, the employer has many responsibilities that must be met in order to remain compliant with FEHA and ADA mandates.

If an employer fails to show a good faith engagement in the interactive process, those actions could put the employer at risk of being found liable in a disability discrimination suit should the employee choose to initiate legal action to protect his or her rights under California law.

In order to avoid that liability, these are the responsibilities that every employer must assume during the course of the interactive process:

Maintain Good Faith Collaboration

The interactive process should be a fully collaborative effort in which employee and employer identify appropriate reasonable accommodations. Employers must keep an open mind to all existing possibilities and address the employee’s specific needs as they pertain to his or her disability or impairment.

Respect Employee Confidentiality

Employees may be required to disclose sensitive or private information during the interactive process and employers have a responsibility to respect any employee’s confidentiality and protect any information that has been disclosed throughout the course of the interactive process and even after the process has ended and alternative accommodations have been provided.

Keep Accurate Records of the Process

Employers have a responsibility to maintain and protect all documentation (medical information and otherwise) associated with the interactive process which may include the types of reasonable accommodations requested and/or taken into consideration, all possible accommodations that were evaluated, and the reasonable accommodations that were selected along with an explanation or definition as to why these were chosen and applied.

Implement the Requested Accommodation

After employer and employee identify potential accommodations, those should be implemented at the earliest possible opportunity. Any unreasonable accommodations are exempt, including those which may cause an undue hardship or come at an unreasonably high expense for the employer.

Train Personnel on Accommodation Policies

Employers must provide proper training to all management personnel on how to recognize reasonable accommodation requests and identify if and when an employee requires accommodations in order to perform his or her duties more effectively. This should also include adopting clear and concise reasonable accommodations policies and reviewing them with all stakeholders in the organization to ensure compliance with state and federal employee discrimination and retaliation laws.

Employee Responsibilities to Support the Interactive Process

Under the California Fair Employment and Housing Act, once the interactive process has been triggered, an employee must provide relevant information and/or reasonable documentation related to his or her disability, the need for reasonable accommodation, and the employee’s requested accommodation should there be such accommodation that exists to address the employee’s disability or impairment.

Employee and employer must begin discussions of suitable, effective accommodations in order to ensure an employee’s continued employment at his or her current position. In some instances, a change of position may be required but this (and other possible accommodations) should be reviewed and discussed by all relevant parties.

Just like the employer has responsibilities that must be followed during the interactive process, the employee also has some responsibilities to keep in mind in order to ensure a smooth and seamless process and positive and effective outcome:

Provide Sufficient Information Regarding Employee’s Disability

While it’s not necessary for an employee to turn over a complete medical history to his or her employer, any employee engaged in the interactive process must provide sufficient medical documentation that accurately explains how and why the employee’s disability may affect his or her performance of the essential duties of their job position. The employer may request additional documentation to get a clearer or better understanding of the disability and how reasonable accommodations can assist in helping the employee’s performance on the job.

Be Specific with an Accommodation Request

Specificity is not only important but it can be very helpful when requesting reasonable accommodation. This can help assist employers in identifying possible reasonable accommodations or, if a reasonable accommodation existed that may benefit the employee much more effectively, a detailed request with specific details as to how and why one particular accommodation may prove beneficial over another can speed up the interactive process.

Speak Up in the Interactive Process

Employees are their own best advocates throughout the interactive process and being fully engaged and cooperative at every step of the process is not only beneficial but required for all employees who wish to pursue reasonable accommodations requests. That means employees must be present in all meetings, engage in communications, voice opinions, make suggestions as to the best possible accommodations that address the employee’s particular limitations in performing the duties of employment.

Defining Reasonable Accommodations

Reasonable workplace accommodation must provide the employee with an increase in efficiency towards performing the essential job functions of the job position for which he or she has been employed. These accommodations may be something as simple as a change in scheduling or hours, providing special equipment or making modifications to the workspace, or reassignment of the employee to a different position in the organization. Some effective accommodations may incorporate the following:

Installation of special equipment that improves accessibility such as a wheelchair ramp, additional exclusive parking space, or ensuring compliance with ADA-accessibility guidelines.
Acquiring modified versions of standard equipment that enables an employee easier use of said equipment as it pertains to his or her job duties.
Modifying work schedule or approving leave of absence or a reduction in hours to an employee who needs the time to address health issues or a medical condition
Providing special equipment to address an employee’s visual impairment.
Reassigning the employee to an alternative position that is currently vacant within the organization. This is often applicable after all other forms of reasonable accommodations are considered, attempted, and/or found to be insufficient

Unreasonable Accommodation Requests

The word “reasonable” can’t be overlooked during the interactive process and, unfortunately, some employee’s health care provider limitations, along with other factors, may make it difficult for an employer to provide reasonable accommodations for some disabilities.

Examples of unreasonable accommodation requests typically include the following:

Modifications are made for the employee’s work schedule or employment duties that cause a significant disruption to the daily operations of the organization.
Making a change in supervisor or manager of the employee requesting reasonable accommodation.
Giving the employee a promotion in position to enable certain accommodations necessary to address the employee’s disability.
Providing the employee an extended leave of absence without an anticipated return date.
Any arrangement in which such accommodation request would represent an undue hardship on the employer or the employer’s normal business operations.

Remedies for Failing to Engage in the Interactive Process

In the event any California employer fails to cooperate or participate in the interactive process, refuses to offer reasonable accommodations, or otherwise neglects their responsibilities at any time during the interactive process, that employer may be subject to any number of state and federal discrimination violations.

Any employee who believes that he or she has been a victim of discrimination or retaliation for choosing to exercise their rights and engage in an interactive process for reasonable accommodations should seek legal help in bringing a claim against their employer.

Failure to engage in the interactive process in California can result in liability for employers, even if a reasonable accommodation was not possible.

What remedies are available to employees through the legal system? The following are all applicable to those who have been wronged during or denied an interactive process and their rights violated under the FEHA and ADA:

Resolve the Matter Directly

Disputes over accommodation requests are often resolved directly between employer and employee without the need for legal recourse. So it’s best to attempt to resolve any such matters internally, but if the disputes persist and the employee finds it difficult to maintain his or her employment in the organization without such accommodations, it may be necessary to seek legal action.

Failure to Initiate or Engage in the Interactive Process

Any employer who declines, delays, or fails to initiate the interactive process for any reason is in violation of the California Fair Employment and Housing Act and Americans with Disabilities Act. The employee is being victimized because his or her rights are being violated by that employer and the only way to hold the employer and the organization accountable is by taking legal action.

Denial of Accommodation Requests

Any California employer who has been made aware of an employee’s disability is required by law to engage in the interactive process to provide that employee with effective reasonable accommodations. Denial of that request may constitute a disability discrimination violation that can be challenged in a court of law.

Discrimination Violations

Employees who have been demoted, excluded from meetings or benefits within the organization, had their hours reduced, or terminated from their employment as a result of making any reasonable accommodations requests or initiating or engaging in an interactive process may be victims of disability discrimination or retaliation on the part of an employer. These are a clear violation of an employee’s rights and he or she should work with a discrimination attorney to file a legal complaint against their employer.

Protect Your Rights as a Disabled Employee

If you believe your rights have been violated, it is essential that you consult with an experienced California employment attorney who can help you understand your legal options and guide you through the process of seeking justice.

Fahim Rahman, an employment attorney with expertise in California law, is dedicated to helping employees protect their rights and achieve fair outcomes in their cases. If you need legal assistance, don’t hesitate to schedule a consultation with Fahim Rahman to discuss your case and determine the best course of action for your situation.

Failure to Engage in the Interactive Process

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The Interactive Process Under California's Fair Employment and Housing Act (FEHA)

How an Employee's Disability Triggers the Interactive Process