When Does An Employer Have to Engage in the Interactive Process?

Under both the Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”), employers are legally obligated to provide a reasonable accommodation to qualified individuals with disabilities. Before there can be any determination as to what a “reasonable accommodation” entails, there is something referred to as the “interactive process,” which must be engaged in for employers to determine what sort of accommodation is in fact reasonable.
Distinct from the ADA, under California’s FEHA, an employer’s failure to engage in a timely, good faith, interactive process can give rise to a stand-alone legal claim.1

Notice to the Employer
California’s FEHA and its accompanying regulations define an employer’s obligation to engage in a timely, good faith, interactive process.2 Essentially, there are three situations that trigger an employer’s obligation to explore possible accommodations:

  1. Employee requests accommodation
  2. Employer “becomes aware of the need for an accommodation through a third party or by observation.”
  3. An employee with a disability exhausts the leave provided under some other law (such as FMLA, CFRA, or pregnancy-disability leave) and remains unable to work.

Notification to the employer does not require the use of any “magic words.”3 Nor is an employer necessarily entitled to the diagnosis or other specifics about the medical condition or disability.4 All that is required is knowledge of functional work limitations.5

Good Faith Exploration of Possible Accommodations
Once an employer is on notice that an employee requires some form of accommodation, “[t]he interactive process requires communication and good faith exploration of possible accommodations between employers and individual employees. That shared goal is to identify an accommodation that allows the employee to perform the job effectively. Both sides must communicate directly, and exchange essential information.”6 Once the process begins, it is critical that both the employer and employee engage in the interactive process “in good faith” to identify reasonable accommodations.7 It is just as important for an employee to cooperate throughout the interactive process as it is for the employer.

Deciding on a “Reasonable Accommodation”
California’s FEHA and its accompanying regulations provide a non-exhaustive list (meaning there are many more than listed) of possible accommodations. Some examples of potential accommodations include:

    • Job restructuring
    • Making facilities readily accessible and usable by disabled individuals
    • Providing additional training
    • Acquiring or modifying equipment or devices
    • Offering part-time or modified work schedules
    • Allowing assistive animals on the worksite
    • Providing paid or unpaid leave for treatment and recovery8

An employer “has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.9 However, unless the employer can demonstrate that an accommodation would cause an “undue hardship,” employers should give preference to the employee’s requested accommodations.10

If you have a disability that requires some form of accommodation in the workplace, you have the right to seek assistance from your employer. A supervisor or Human Resource manager is often the best place to start when seeking accommodations. Additionally, it is always a good idea to make requests in writing and keep documentation of all communications with your employer about the requested accommodation.

Seeking an accommodation in the workplace can be intimidating, and even confusing at times. If your employer is not cooperating with you in your request for a reasonable accommodation or failing to engage in the interactive process, our team at Potter Handy, LLP is here to help.

[1] Cal. Gov’t Code § 12940(n).
[2] 2 Cal. Code Regs., tit. 2, § 11069.
[3] See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-1172 (10th Cir. 1999), analyzing analogous procedures under the ADA.
[4] 2 Cal. Code Regs., tit. 2 § 11069(d)(1).
[5] Id.
[6] Barnett v. U.S. Air, Inc. 228 F. 3d 1105, 1114-1115 (9th Cir. 2000), revd. on other grounds U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)
[7] 2 Cal. Code Regs., tit. 2 § 11069(c) & (d).
[8] See Cal. Gov’t Code § 12926(p); Cal. Code Regs., tit. 2 § 11065(p)(2).
[9] Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.
[10] See Dutton v. Johnson County Board of County Commissioners, 859 F.Supp. 498, 507 (D. Kan. 1994); also see 42 U.S.C. § 12112(b)(5)(A); Cal. Gov’t Code § 12940(m).

Leave a Reply