Under the Fair Employment and Housing Act (FEHA) and the Americans With Disabilities Act (ADA), an employer is liable for failure to reasonably accommodate the known or perceived disability of an employee.1 The elements of a failure to accommodate claim under the FEHA are: (1) plaintiff suffers from a disability covered by the FEHA; (2) plaintiff can perform the essential functions of the job with or without accommodation; and (3) defendant has failed to reasonably accommodate plaintiff's disability.2

FEHA also makes it an unlawful employment practice for an employer to fail to engage in a timely, good-faith, interactive process with the employee to determine effective reasonable accommodation, if any, in response to a request for accommodation by an employee.3 What is this interactive process and how can it be satisfied?

The Legal Landscape

FEHA defines "reasonable accommodation" only by way of example. The definition is virtually identical to the ADA's statutory definition of "reasonable accommodation," which is also by way of example. "Reasonable accommodation" is making existing facilities usable by individuals with disabilities; or job restructuring; part time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; adjustment or modification of examinations, training materials or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.4 An employer is required to reasonably accommodate an employee unless the employer can demonstrate that such an accommodation would result in undue hardship to the operation of the business. (Gov. Code §12940(m).)

The failure to engage in a good-faith interactive process with an employee requesting accommodation is a separate wrong actionable under the FEHA. Many employers, mindful of the obligation to reasonably accommodate a qualified individual with a disability, nevertheless fail to engage in the interactive process. Specifically, under the FEHA, an employee may prevail on a claim for failure to engage in the interactive process without prevailing on a claim for failure to make reasonable accommodation.5

The interactive process requires communication and good-faith exploration of possible accommodations between employers and employees. The purpose is to jointly identify an accommodation that allows the employee to perform the essential functions of the job.6 The focus of this cause of action is on the failure to discuss, not the failure to accommodate.

The elements of a cause of action for failure to engage in a good-faith interactive process to discuss reasonable accommodation are: (1) that the plaintiff had a condition/limitation that was known to the defendant; (2) that plaintiff requested that defendant make reasonable accommodation for his/her limitation/condition so that he/she would be able to perform the essential job requirements; (3) that plaintiff was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that he/she would be able to perform the essential job requirements; (4) that defendant failed to participate in a timely good-faith interactive process to determine whether reasonable accommodation could be made; (5) that defendant's failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff harm. (CACI No. 2546.)

There is much confusion regarding what an employer is required to do to avoid liability for a failure to engage in the interactive process in good faith. Although the statutory prohibition makes unlawful an employer's failure to engage in the interactive process "in response to a request for reasonable accommodation by an employee or applicant," the legislation has been broadly interpreted to obligate an employer to engage in the interactive process without a direct request for accommodation by the employee. Moreover, there is a split of authority as to whether the employee must prove that reasonable accommodation was possible before there is a violation for failure to engage in the interactive process.7 Ironically, an employer could be liable for failing to explore available accommodations even where no reasonable accommodation was possible.8

How to Comply?

A primer for the employer faced with the knowledge that an employee is in need of an accommodation cannot be made foolproof. A fact-specific, individualized inquiry is required. These guidelines emphasize a cautious approach to conducting an interactive process which will insulate an employer from liability under Government Code Section 12904(n).

Do not wait for an employee to "request accommodation"

The statutory requirement that a plaintiff must request accommodation is a general rule but exceptions apply. The employer's obligation to engage in the interactive process is triggered without an express request from the employee when the employer recognizes the need for an accommodation.9

Comment: Although typically an applicant or employee triggers the employer's obligation to participate in the interactive process by requesting an accommodation, no magic words are necessary. The obligation arises once the employer becomes aware of the need to consider an accommodation. The cautious approach is to meet with an employee to discuss any perceived difficulties in an employee's performance of essential job functions.

Give broad consideration to what condition may be disabling

What constitutes a disability, knowledge of which requires initiation of the interactive process, is broadly construed. Under Government Code Section 12926, a physical or mental disability is a condition which limits a major life activity, including social activities and working. A major life activity is limited if it makes achievement of the activity difficult. Under federal law, a "substantial" limitation of a major life activity is required.

Be mindful of the reciprocal obligation to participate in good faith

 The interactive process required by the FEHA is an informal one to identify what reasonable accommodation will enable the employee to perform the job effectively.10 "Ritualized discussions" are not necessarily required.11

An employer should identify barriers to equal opportunity for the disabled employee, including distinguishing between essential and non-essential job functions; identifying possible accommodations; and assessing the reasonableness of each accommodation. The employee should be permitted to suggest his or her own accommodation if it does not impose an undue hardship. An employer who rejects an employee's proposed accommodations and offers no effective alternative fails to engage in good-faith in the mandatory interactive process.12 Both sides must communicate directly, exchange essential information, and make available to the other side information which is more accessible to one party.13

The interactive process is not a one-sided exploration. Finding out what a disabled employee is interested in and qualified for is part of the process.14 An employer is not liable for failing to provide reasonable accommodation if the employee is responsible for a breakdown in the interactive process.15

A party that obstructs or delays the interactive process is not acting in good faith. A party who fails to communicate, by way of initiation or response, may also be acting in bad faith.16 Both sides must communicate directly, exchange essential information and participate in good faith.17 If there is a breakdown in the interactive process, a court must attempt to assign responsibility for that lapse to insure that only where the employer bears responsibility for the breakdown can it be liable.18

Comment: An employer may decide not to participate in the interactive process because the employer believes that no reasonable accommodation is possible, or the employee expresses an inability to work regardless of potential accommodation. Under the FEHA, participation is mandatory. Under the ADA, the better practice is to engage in the interactive process because the employer bears the burden of persuasion as to whether participation should be excused by proving that no reasonable accommodation was available.19

Comment: An employer must be mindful of the fact that if an employee's failure to participate in the interactive process can be shown to stem from the disability, the employee's conduct will not defeat liability against the employer.20

Good faith participation in the interactive process is an ongoing obligation

 An employer's obligation to engage in the interactive process extends beyond a first attempt at accommodation and continues when the employee asks for a different accommodation or the employer is aware that the initial accommodation is failing and further accommodation is needed.21

Document the interactive process

The employer should meet personally with the affected employee and request medical information about the condition and its functional limitations. An employee should be asked what accommodations he or she is seeking and a written record of the steps taken to evaluate the employee's request should be made. Employers must offer and discuss available alternatives and document an employee's rejection of any offered accommodation.22 An employee's refusal of a reasonable accommodation offer may preclude liability against the employer for violations of both Gov. Code §§12940(m) and (n).

Comment: Where the interactive process is complicated, such as where there are multiple limitations based on varying conditions or a workers' compensation claim is pending, it may be advisable to engage the services of a rehabilitation specialist to participate in the interactive process.

Be creative in analyzing potential accommodations

It is the plaintiff's burden to prove that a requested accommodation would permit him or to perform the essential functions of the job to establish liability for a failure to accommodate.23 However, it is the employer's burden to show reasonable accommodations were considered in good faith at the interactive process stage.

An employer is not required to create a new job, move another employee, promote the disabled employee, or violate another employee's rights in order to accommodate the disabled employee.24 An employer is not required to offer an accommodation which would require other employees to work harder.25

Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected.26 The law does not impose an obligation on the employer to provide an accommodation that would not permit the employee to perform all of the essential functions of the job.27

Holding a job open for a disabled employee who needs time to recuperate may be a form of reasonable accommodation.28 An employer should explore the availability of open positions in the workplace which the restricted employee would be able to perform.

An employer has no duty to accommodate an employee who is unable to work with a specific supervisor and requests reassignment.29 Working at home may be a reasonable accommodation where the essential functions of the position can be performed at home and would not cause an undue hardship for the employer. (EEOC Enforcement Guidance on Reasonable Accommodation at 7626.) The FEHA does not require an employer to accommodate an employee by allowing the use of illegal drugs, including medical marijuana.30 The fact that certain accommodations may have been offered to some employees does not mean they must be extended as a matter of law to others.31

Comment: What is important is that the employer fully explores alternative positions and job modifications which would allow the disabled employee to perform the essential functions of the job. The courts have evidenced a willingness to require an employer to dig deep to find reasonable ways to keep a disabled employee on the job.

CONCLUSION

An employer can only operate through its managerial/supervisorial employees. Employees with responsibility to direct others using their independent judgment, where supervision of employees is not merely routine or clerical, are within the ambit of the FEHA's definition of "supervisor." Although there is no individual liability for a failure to engage in the interactive process, supervisors should insure that employees in need of accommodation be referred for participation in the interactive process. Ideally, direct supervisors should be involved in the process, so that an effective assessment of what the essential job functions are, and whether the affected employee can perform them with or without accommodation, is fully explored.

Footnotes

1 Gov. Code §12940(a); 42 U.S.C. §12112(a).

2 Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266.

3 Government Code §12940(n); see also EEOC Compliance Manual, §902 (March 1, 1999). This analysis discusses compliance with FEHA requirements for a good-faith interactive process. The ADA contains no reference to an interactive process but ADA Title I regulations make clear the ADA envisions an "interactive process." (29 CFR §1630.2(o)(3).) The California Legislature intended federal precedent to guide its interpretation of the duty to engage in the interactive process. (Gov. Code §12926.1(e).) The ADA does not preempt state laws that provide greater or equal protection for the rights of individuals with disabilities under the ADA. (See 42 USC §12201(b).)

 4 Prilliman v. United Airlines, Inc. (1997) 53 Cal.App.4th 935, 947-948; 29 CFR §1630.2(o)(2).

 5 Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.

 6 Jensen, supra, 85 Cal.App.4th at 261.

 7 Wysinger, supra, 157 Cal.App.4th at 424-425; Claudio v. Regents of Univ. of California (2005) 134 Cal.App.4th 224, 243; Nadaf-Rahrov v. The Nieman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980-985. Federal law under ADA allows the employer to defend if no reasonable accommodation was possible, but the employer bears the burden of proof on the issue. (See McBride v. BIC Consumer Prods. Mfg. (2nd Cir. 2009) 583 F.3d 92, 100-101; Fjellestad v. Pizza Hut of Am, Inc. (8th Cir. 1999) 188 F.3d 944, 952; Barnett v. U.S. Air (9th Cir. 2000) 228 F.3d 1105, 1116.

 8 Wysinger, supra, 157 Cal.App.4th at 424-425. The Fourth District attempted to resolve the split of authority in Scotch v. Art Inst. Of California (2009) 173 Cal.App.4th 986, 1018-1019, holding that to prevail under Section 12940(n), an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.

 9 Brown v. Lucky Stores, Inc. (9th Cir. 2001) 246 F.3d 1182, 1188.)

 10 Wilson v. County of Orange (2009) 169 Cal.App.4th 1158, 1195.

 11 Ibid.

 12 Nadaf-Rahrov, supra, 166 Cal.App.4th 952, 980-984.

 13 Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62, fn. 22.

 14 Hansen v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.

15 See Zivkovic v. Southern California Edison Co. (9th Cir. 2002) 302 F.3d 1080, 1089.

 16 Barnett, supra, 228 F.3d at 1116.

 17 Although the interactive process contemplates direct communication between the employer and employee, a refusal to communicate directly with an employee's lawyer was not "reasonable" as a matter of law on summary judgment. Claudio v. Regents of Univ. of Calif. (2005) 134 Cal.App.4th 224.

 18 Barnett, supra, 228 F.3d at 1114.

 19 See Dark v. Curry County (9th Cir. 2006) 451 F.3d 1078, 1088.

 20 Allen v. Pac. Bell (9th Cir. 2003) 348 F.3d 1113; Velente-Hook v. E. Plumas Health Care (E.D. Cal. 2005) 368 F.Supp.2d 1084.

 21 Humphrey v. Memorial Hospital Association (9th Cir. 2001) 239 F.3d 1128, 1138; Scotch v. Art Inst. of California (2009) 173 Cal.App.4th 986, 1013-1014.

 22 See Barnett, supra, 228 F.3d at 1115.

 23 Jensen, supra, 85 Cal.App.4th at 263.

 24 Spencer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389.

 25 Turco v. Hoechst Celanese Chem. Group (5th Cir. 1997) 101 F.3d 1090, 1093.

 26 Hansen, supra, 74 Cal.App.4th at 226-227.

 27 Paulus v. Kaiser Permanente Medical Group, Inc. (N.D. Cal. 1999) 199 U.S. Dist. LEXIS 7784, *13.

 28 Jensen, supra, 85 Cal.App.4th at 263.

 29 Candee v. AT&T Wireless Mobility LLC (N.D. Cal. 2010) 2010 U.S. Dist. LEXIS 127416, *15-16.

 30 Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925-931.

 31 Traynor v. Turnage (1988) 45 U.S. 535, 549.

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