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 doesn’t say anything, if 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.
We are here to assist you navigate and meet your obligations.
* Bilingual staff (SPANISH) available for all service.
ENGAGING IN THE INTERACTIVE PROCESS IN COMPLIANCE WITH
(F.E.H.A.) THE FAIR EMPLOYMENT HOUSING ACT
INTERACTIVE PROCESS INITIATION TRIGGERS**
Engage before any negative employment action is taken with employee/applicant with a known disability or perceived disability.
Engage every time you have knowledge of new work restrictions. Consideration and discussion should be made for both permanent and temporary work restrictions.
Engage if you are aware of rumors as it pertains to a medical condition that is impacting an employee’s ability to do job.
Engage when you have progressive disciplinary actions where employer believes that a medical condition or disability may underline the performance issues (i.e. attendance problems, stamina changes, consistency of work, safety violations etc.)
Engage with employee when she/he returns/is expected to return from any form of medical leave and has work restrictions.
Engage with employee when she/he exhausts all paid/unpaid leave options and still has not returned to work due to medical condition/work restrictions.
Engage with employee when she/he requests “help” or informally asks for an accommodation.
Engage with an employee when she/he brings in a medical note with work restrictions or medical status changes.
**The above list represents many common triggers for the Interactive Process, however it is not an exhaustive list. Each employee/candidate case must be taken into consideration based on its’ individual merits. Each situation is different and should be addressed accordingly.
GOOD FAITH INTERACTIVE PROCESS AND REASONABLE ACCOMMODATION
Employers must engage in a good faith interactive process with employees and candidates with a stated, documented and/or are perceived to have a disability.
Employers must provide reasonable accommodation to employees/applicants with documented disabilities.
An employer is in violation of the law by failing to engage in the interactive process regardless of ability to provide reasonable accommodation.
WHAT DOCUMENTATION IS NEEDED?
Current and accurate Job Description or Essential Functions Job Analysis, outlining essential functions, physical demands, mental demands and environmental exposures. (need an EFJA go to www. R2WP.com and fill out a referral request)
ALL current work restrictions/ functional limitations. All work restrictions need to be clear and precise.
ALL work restrictions from ALL doctors need to be considered.
List of all available/current vacant available jobs. (All vacant alternate jobs. Consider all locations within organization)
WHO SHOULD ATTEND AN ACCOMMODATIONS MEETING?
Multiple meetings may occur throughout the Interactive Process and participants at each meeting may vary. Once an employer has the documentation necessary to make an informed assessment, it is recommended that the following person(s) be involved: (* mandatory)
*Employee and his/her choice of representation
*Employee’s supervisor and/or manager
Risk Manager/ Workers Comp. Representative
Legal Counsel (on a case by case scenario)
Facilitator or note taker.
Any person(s) whom can contribute to reasonable accommodation discussion ie. advocate, consultant, counselor
INTERACTIVE PROCESS DISCUSSION POINTS TO COVER
Does the employee agree with prescribed work restrictions?
What is the duration of work restrictions prescribed?
Which essential functions come in conflict with employee’s current work restriction(s)? Consider all active/ current work restrictions.
Each current work restriction needs to be considered during the interactive process. Start with the most restrictive.
How do work restriction(s) affect employee’s ability to do their job?
What is/are the employee’s preferred accommodation request?
What accommodation recommendation / ideas were discussed?
Which reasonable accommodations were ruled out and why?
What are the employers’ preferred accommodation options?
Are any of the accommodation options reasonable? If yes, document next steps ie. start date who, when and how?
Is there a Direct Threat or Undue Hardship issues?
Can the employee be reasonably accommodated? Explain.
REASONABLE ACCOMMODATIONS OPTIONS:
All reasonable accommodation options need to be explored. For example: Worksite modification to allow accessibility; Job restructuring; Offering a modified or part-time work schedule; Flexible leave policy; Reassignment to an alternative vacant position. *must meet minimum qualifications; Modification or adjustment of existing equipment or devices; Acquisition of assistive equipment or devices; Assignment of personal assistant, qualified reader or interpreter; Providing employee with the assistance of another employee, as a form of accommodation; Allowing assistive animals on the worksite; Altering when and/or how an essential function is performed; Providing additional training; Modifying supervisory methods; Permitting and employee to work from home / telecommute; Provide paid or unpaid leave for treatment, recovery or to attain updated work restrictions; Adjustment or modification of examinations, training materials or policy; Adjustment or modification to equipment at job site; Implementation of assistive equipment or devices owned and/or used by employee/applicant; All other accommodation(s) requested, discussed and/or considered? The above is not an exhaustive list of accommodation options. Each case is different.
Written Interactive Process initiation notice to employee/candidate explaining the Fair Employment and Housing Act and the Interactive Process. Introduction letter(s), pamphlets
Written accommodation meeting / appointment notice to parties
Detailed written discussion regarding exploration of essential functions in conflict and all reasonable accommodation options
For each meeting, a detailed and signed (by all participants) set of accommodation meeting notes to include discussion, results and next steps
NEXT STEPS / FOLLOW UP
If no accommodation, explore with employee all paid and unpaid leave options available, as a form of reasonable accommodation.
Set up follow up meeting to address changes to work restrictions.
Follow up with employee and supervisor as to how accommodations in place are working out.
Set up a follow up meeting if accommodations agreed upon are no longer effective to either employer or employee.
To learn more about what our consultants can do to help facilitate the interactive process, feel free to contact us.
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.