Knowing When To Initiate The “Interactive Process” Is Key To Avoiding Disability Discrimination Lawsuits

California employers with five or more employees have an affirmative legal duty to provide reasonable accommodation to their employees with physical or mental disabilities unless doing so would cause undue hardship.

According to data provided by the Equal Employment Opportunity Commission (EEOC), 32.6% of all EEOC claims filed in California in 2016 were based on disability, surpassing the number of claims filed based on any other protected characteristic, such as race, sex, color, religion, national origin, or age. Similarly, the California Department of Fair Employment and Housing (DFEH) reported that the majority of employment-based discrimination claims it received in 2016 were based on disability. These statistics are not too surprising given how complex the law is in this area. Even employers with well-meaning and knowledgeable human resources personnel can easily get tripped up when trying to comply with an employer’s legal obligations. Indeed, this is one of the areas that my clients most often seek out my advice given the law’s complexities.

A California employer’s duty to provide reasonable accommodation to individuals with disabilities is principally derived from two laws, the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). An employer’s legal duty here encompasses two distinct yet related obligations, to make “reasonable accommodation” and engage in an “interactive process.” “Reasonable accommodation” refers to a modification or adjustment to the work environment that enables an employee to perform the essential functions of the job he or she holds. An “interactive process” consists of a dialogue between an employer and employee to assist the employer in selecting an appropriate accommodation. Essentially, reasonable accommodations remove barriers to employment faced by disabled individuals that enable them to apply for jobs, perform their jobs, and reap the benefits of employment, and the interactive process is the means by which a reasonable accommodation is selected.

Not knowing when to initiate the interactive process is one of the biggest missteps that employers can make, which may lead to costly disability discrimination lawsuits down the line. A California employer must initiate the interactive process when any of the following occur:

(1) A disabled applicant or employee requests reasonable accommodation(s). Any “plain English” request will suffice if it puts the employer on notice that the employee may need a reasonable accommodation. Importantly, an employee need not mention the words “reasonable accommodation” or refer to disability rights laws when making a request. For example, an employee might tell her supervisor that she will need four weeks off to recover from a scheduled surgery, that completing assignments on time is difficult due to her learning disability, or that she cannot sit at her office desk for long stretches of time due to her back pain flaring up. Each of these would trigger the employer’s duty to initiate the interactive process.

(2) The employer becomes aware of the need for an accommodation through a third party or by observation. Even if an employee does not say he or she is disabled or request an accommodation, an employer must nonetheless initiate the interactive process if it learns of the need for an accommodation. For example, if an employee’s spouse or other family member calls HR to advise that the employee is in the hospital due to a medical emergency, or an employee is observed walking into the office with his arm in a cast, either of these scenarios would trigger the employer’s duty to start the interactive process.

(3) A disabled employee has exhausted leave under state or federal law or under the employer’s leave policy, and the employee or employee’s health care provider indicates that further accommodation is necessary. Oftentimes, an employee’s doctor will place the employee on medical leave for a duration that exceeds the amount of leave they are entitled to by law or under the employer’s leave policy. Employers are required to take a request for such additional time off as a request for accommodation. For example, suppose an employee is out on FMLA leave due to his own serious health condition, and his leave entitlement ends on June 1st. On May 30th, the employee submits medical documentation indicating that he must be off work until June 25th. The employer must interpret the doctor’s note as a request by the attorney for accommodation for the period starting June 2nd.

Once an employee requests an accommodation or the employer otherwise becomes aware of the need for one, the employer must then take proper steps to engage in a timely, good faith interactive process.

As part of the interactive process, the employer may require the employee to provide reasonable medical documentation, and the employer must make an analysis of all possible reasonable accommodations that will enable the employee to perform his or her essential job functions, unless doing so would work an undue hardship for the employer. While the law regarding implementation of the interactive process, selecting a proper accommodation, and analyzing undue hardship is beyond the scope of this blog, you should now be in a better position to at least know when the duty to engage in an interactive process is triggered. In my experience, this puts you in a much better position than most employers, and is key to avoiding costly disability discrimination lawsuits down the road.

Employer Action Items:

At a minimum, employers should have clear written policies and procedures in place for handling requests for reasonable accommodation. Supervisors and managers should receive training so that they know how to spot requests for accommodation and know to pass along such requests to HR so that HR can implement the interactive process. In my litigation days, I defended several disability discrimination lawsuits which could have been avoided had the supervisor been aware that an employee’s seemingly offhand statement in an email such as, “My migraines have been making it difficult to get things done on time,” should have triggered the interactive process and been forwarded to HR.