We are a full service Interactive Process Provider, of the following:
Initial consultation to address status of knowledge of disability, current accommodation in place, urgency and review of supporting documents.
Our Interactive Process Facilitation Services include: contacts with all pertaining parties; scheduling of good faith interactive meetings; review and development of all supporting documents (e.g. notices, follow-up, attaining precise work restrictions/limitations); facilitation of a good faith interactive process; completion of documentation summarizing meeting findings, next steps and conclusion; request for accommodations; response to accommodation request and steps that need to be taken; development of return-to-work agreements and related supporting documents.
We facilitate the attainment or organization of most current information to facilitate a good faith interactive meeting.
Facilitation of a good faith interactive process / meeting.
Schedule and facilitate follow up interactive meetings as needed.
Assist in the identification of Reasonable Accommodations.
Upon request, we also monitor and follow up on status of reasonable accommodations in place.
Under both the ADA and FEHA, “the 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, exchange essential information.” (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).)
Mandates A Good Faith Interactive Process
“Employers must engage in a good faith interactive process with employees and candidates who have disabilities to determine the appropriate reasonable accommodations that might overcome the employee’s / applicant’s job limitations.”
This is a stand-alone statutory requirement.
Source: Fair Employment and Housing Act-FEHA (Government Code § 12940(n)
“Ordinarily, a disabled employee may not require an employer to communicate directly with the employee’s attorney, because the interactive process contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings.” (Claudio v. Regents of University of California, 134 Cal.App.4th 224, 228 (2005).)
Title 2 CCR section 7294.0 defines the employer’s obligation to engage in a “timely, good faith, interactive process.” It identifies three situations that trigger this obligation to explore possible accommodations.
First, the obligation arises when an employee requests accommodation.
Second, the obligation arises when an employer “becomes aware of the need for an accommodation through a third party or by observation.” So even if the employee says nothing, the employer is aware from some other source that the employee has an impairment that is interfering with his or her ability to perform the job, the employer is required to initiate the process.
Third, the employer must initiate the interactive process if 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 return to work.
EEOC guidelines on the interactive process (incorporated into the FEHA, see Cal. Gov’t Code § 12926(1)(e)) offer more specific guidance.
The parties must:
Analyze the particular job involved and determine its purpose and essential functions;
Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;
In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position, and;
Consider the preference of the individual to be accommodated; and select and implement the accommodation that is most appropriate for both the employee and the employer.
(See 29 C.F.R. pt. 1630, App. § 1630.9).
The interactive process is used to determine what reasonable accommodations the employee needs in order to keep performing all the essential functions of his or her job. Each step along the way includes particular legal requirements and thus poses potential areas for dispute.
Determining reasonable accommodations through an interactive process upon request of an employee or applicant with a known disability is part of adhering to both the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA). Due to the sensitivity of the topic, though, proper accommodation meeting management is important in ensuring that both the employee/applicant and the employer reach a fair agreement.
Before reasonable accommodations are decided upon, it is important for the employer to engage in a good faith interactive process. In the eyes of the law, a “good faith effort” is characterized by honesty and fairness so as not to destroy the rights of both parties.
Unfortunately, employees and job applicants protected by ADA and FEHA may not feel that they are on level ground with their employers. While they may ask for certain accommodations to help them perform their job despite their condition, employers are not required to provide them if they impose undue hardship on the business. This can come in the form of undue costs or potentially disruptive or extensive changes to the workplace. In such situations, those protected may feel slighted and could file a complaint.
Under AB 2222, which expanded California’s disability law in 2001, the duty to engage in a good faith interactive process is a stand-alone statutory requirement. Even if accommodation is not possible, employers must still proceed with the process to avoid violating the statute.
The best way to facilitate a good faith interactive process is under the guidance of those with full knowledge of California’s labor laws. From approaching the employee regarding his or her condition, to deciding on the proper accommodations, a neutral party can provide objectivity and ensure fairness throughout the process.
Aside from assisting with accommodation meeting management, Return to Work Partners can also help facilitate other aspects of the interactive process. Our team of professionals can provide a job analysis to determine essential functions and consider if an employee can continue carrying them out without causing undue hardship to the employer. Our consultants can also provide an evaluation of current business practices and policies to ensure that all comply with federal and state laws on disability and discrimination. If employee training on current disability laws and discrimination is needed, our consultants can also provide assistance with that.
Return To Work Partners also has bilingual staff (Spanish) available for all services.
DISCLAIMER: The information and materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. This brief outline of your disability compliance obligations is designed to provide accurate and authoritative information in a highly summarized manner in regard to the subject matter covered on this website. They provide the reader / end user with the understanding that the publisher of this information is not engaged in rendering legal advice / services. If legal assistance is required, the services of competent legal professionals should always be sought.