The Duty to Engage in the Interactive Process
Both California law (Fair Employment and Housing Act (FEHA) - Government Code §12940 et seq.) and Federal law (Americans with Disabilities Act (ADA)) require the employer and the employee to engage or 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.
What triggers the 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. No formal request or notice is required and, more importantly, the employee need not use any magic words such as “accommodation,” or “ADA.” When the disability/restrictions and potential need for an accommodation are apparent, a request from an employee is required.
The interactive process is designed to analyze the purpose and essential functions of the job at issue. The next step is for the employer to consult with the employee to find out what job-related limits are created by the employee’s disability. The process then requires the employer and employee to identify and assess potential accommodations that would enable the employee to perform the essential functions of the position.
The process is an ongoing one which may require continual reassessment of previously provided accommodations especially if the initial accommodation is not working. In other words, the interactive process is not a “one and done” process. 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.
Input or clarification should be sought from the health care provider placing the restrictions on an employee when the limitations are unclear or to obtain input on whether a particular accommodation will violate the restrictions. Other experts in the area of vocational rehabilitation can also be consulted in order to capitalize on their experience and expertise at accommodating employees with disability related restrictions.
In sum, under California law, legal liability can be imposed on an employer who fails to engage in a timely, good faith interactive process. Although a split in legal authority exists on the issue, the trend is to impose liability on an employer 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. Thus, it is important for employers to recognize the need to actively participate with an open mind in the interactive process with the employee.