What is the interactive process and why should I care?
If you are a disabled employee, you should care because unless your disability is obvious, it is incumbent upon you to initiate the conversation with your employer regarding your limitations and necessary accommodations.
As an employer, California law requires you engage in this thing called the “interactive process” with your disabled employees and failure to do so subjects you to liability separate from the failure to reasonably accommodate itself.
Now on to the nitty gritty.
Both the federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) require employers to engage in a “timely, good faith, interactive process” to determine effective reasonable accommodations with an individual who has a known disability or medical condition and requests accommodation. However, liability exists only if a reasonable accommodation is in fact possible.
Since California generally afford employees more protection than federal law, under California law, an employer’s duty to engage in the interactive process with and reasonably accommodate extends to employees and applicants who do not actually have a disability but whom the employer “regards as” disabled.
PRACTICAL TIP: How to Engage in the Interactive Process
According to the federal Equal Employment Opportunity Commission, which enforces the ADA, the employer and the employee should engage in a four-step problem-solving process to determine what accommodations can be implemented that will eliminate the applicant’s or employee’s barriers to employment.
The four steps are:
1. Look at the job. Identify and distinguish between essential and nonessential or marginal job tasks and figure out the purpose of the job; recheck the job description.
2. Consult with the disabled individual to determine the person’s limitations regarding the essential job functions. Find out what barriers to performance exist and examine how they might be overcome. Consult with the individual to identify what potential accommodations exist and how effective they will be. If this consultation does not yield appropriate accommodations, obtain information from other sources.
3. Assess the reasonableness of each accommodation identified. What are the degrees of effectiveness for the disabled individual and of hardship imposed on the employer?
4. Implement the accommodations that best serve the needs of the employee and the employer.
In California, we will add that:
5. If no reasonable accommodation is available, determine whether there is a vacant position for which the disabled employee is qualified and capable of performing with or without reasonable accommodations.
Lastly, remember that both parties have an obligation to engage in the discussion in good faith and not obstruct the process. It is a process in that it may take numerous conversations before the parties reach a resolution. Lawsuits usually result from a communication breakdown.
If you have questions on the interactive process, reasonable accommodations, or employment law in general, feel free to contact us here or call 949.529.0007 to speak to an Orange County employment attorney.