The "interactive process" – the procedure through which an employer determines whether and to what extent it must accommodate an employee's disability or medical condition – is one of the most challenging parts of complying with California's Fair Employment and Housing Act and the federal Americans with Disabilities Act. Unfortunately, there is no one-size-fits-all approach for satisfying this legal requirement, but employers can minimize their risk by following these best practices:
- Educate managers and supervisors: An
employer's managers and supervisors are often the first (and
sometimes the only) company representatives to learn of an
employee's need for accommodation. Accordingly, even if
managers and supervisors are not primarily responsible for
representing the company through the interactive process, employers
should ensure that their managers and supervisors understand not
only the importance of the interactive process, but how the
obligation to engage in the process arises as well as their role in
it.
- Initiate the interactive process promptly: An
employer should begin the interactive process as soon as an
employee requests an accommodation or the employer becomes aware
(such as through a manager, supervisor, or Human Resources) of the
employee's need for accommodation. Once aware of the need for
accommodation, employers should initiate communication to confirm
the scope of the employee's limitations and identify potential
accommodations that would enable the employee to perform the
essential functions of the job.
- Communicate clearly and effectively: Many
disability claims under FEHA and the ADA arise from poor
communication between the employer and employee. Communications
during the interactive process should be clear and direct, telling
the employee precisely what is needed, directly responding to
requests and concerns, asking questions to clarify the
employee's needs, and responding to the employee in a timely
and respectful manner.
- Identify reasonable accommodations: Employers
must attempt to identify reasonable accommodations that would
enable the employee to perform the essential functions of their
job. Employers should consider a wide range of accommodations,
including modifications to the work environment, job duties, and
work schedule. Only after identifying a potential accommodation
should an employer consider whether the accommodation would cause
an undue hardship on the company. Employers should recognize that
mere inconvenience or added cost does not automatically mean that a
potential accommodation creates undue hardship and be wary about
relying on that potential defense, as courts frequently reject the
argument, leading to significant liability.
- Follow up and monitor accommodations: Once a
reasonable accommodation is identified and provided, the employer
should not consider the process done; it should follow up with the
employee to ensure that the accommodation is actually effective. If
the accommodation does not accomplish its intended purpose, the
interactive process should continue with the employee to identify
potential alternative accommodations.
- Accurately document the process: The
interactive process is rarely completed in a single back-and-forth
interaction. Instead, it is usually an ongoing dialogue spanning
several communications occurring over several days or longer.
Because claims alleging failure to engage in the interactive
process and/or provide reasonable accommodation often involve
disputes about the communication between the parties, employers are
wise to document those communications thoughtfully. When an
employer follows the recommendations above and documents its
participation in the interactive process properly, the record of
those communications becomes an incredibly useful tool in proving
that the employer engaged in the interactive process reasonably and
in good faith.
- Maintain confidentiality: Employers should maintain the confidentiality of the employee's disability or medical condition, all related medical information, and the details of the interactive process. Only those individuals who have a need to know should be involved in the interactive process.
Engaging in the interactive process in good faith is a difficult but crucial component of complying with the ADA and California's FEHA and avoiding claims of disability discrimination. Employers without extensive experience in the interactive process should confer with counsel when the duty to engage in the process arises.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.