• What Employers Need To Know About Engaging In the Interactive Process with Their Disabled Employees
  • March 20, 2012 | Authors: Katherine L.M. Mola; Michael W. Pott
  • Law Firm: Porter Scott A Professional Corporation - Sacramento Office
  • Navigating disability-related issues with an employee or job applicant can be tricky. Both California and federal law prohibit discrimination against employees and job applicants with disabilities and require an employer to engage in a timely, good faith, interactive process with a disabled employee/applicant who needs a reasonable accommodation. The interactive process is an informal process meant to identify what, if any, reasonable accommodations can be made to accommodate the disability of an employee/applicant. An employer’s failure to engage in an interactive process can lead to costly litigation. Although the outcome of any interactive process will vary on a case-by-case basis, the following are some tips to help you through this process.

    When Does the Employer Need to Engage in the Interactive Process?
    Typically, the interactive process is triggered when the employee/applicant (or someone acting on the employee/applicant’s behalf) makes a request for accommodation. When requesting to engage in the interactive process, an employee/applicant is not required to use the magic words “reasonable accommodation,” or state that he or she is attempting to “engage in the interactive process.” The employee/applicant must make it clear to the employer that assistance for a disability is needed. The interactive process can also be triggered if the disability and need for accommodation are known to the employer. Under this circumstance, the employer should not wait for the employee/applicant to make a formal request for accommodation, but should instead initiate the interactive process with the employee/applicant. In other words, the employer’s obligation arises when the employer becomes aware of the disability and need for accommodation.

    How Long Does the Employer Need to Engage in the Interactive Process?
    Unfortunately, there is no easy answer to this question, as it depends on the facts of each case. The employer should continue engaging in a dialogue with the employee/applicant until it is apparent that further efforts would be futile in light of the employee/applicant’s refusal to cooperate, a determination that no reasonable accommodation can be made, or some other substantial impediment to the process. The process can be lengthy at times. In Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, a jury found in favor of the defense in a case where the employer engaged in the interactive process for one year. The evidence introduced at trial revealed that the employer had numerous discussions with the employee and provided a series of temporary accommodations, including light/modified duty, modified schedule, and an unpaid leave of absence. Ultimately, the employee received a permanent schedule change. The Appellate Court commented that the permanent schedule change, coupled with the various temporary accommodations, was more than adequate to conclude that the employer had engaged in the interactive process in good faith.

    How Important is Documentation in this Process?
    Documentation is very important in this process! It is critical that the employer create and retain a written record of its efforts to both engage in the interactive process and accommodate a disabled employee/applicant. Preliminarily, the employer should keep a copy of any notes from physicians that contain an employee/applicant’s restrictions. While engaging in any discussions with the employee/applicant or his or her representative regarding possible reasonable accommodations, the employer should take notes at all meetings to document what was discussed. The employer should also maintain notes regarding all efforts to contact the employee/applicant including a log of all attempted contacts with the employee/applicant and a list of dates, times and content of messages both left with and received from the employee/applicant. It is also important to document all accommodations considered and discussed, along with notes indicating which accommodations were offered and implemented or offered and rejected. We recommend sending written confirmation to the employee/applicant following any discussions with them to ensure that both sides are clear about what was discussed and agreed upon.

    Does the Employer Need to Give the Employee/Applicant the Requested Accommodation?
    No. The employer is not obligated to choose the accommodation that is suggested by the employee/applicant. Instead, if there are several possible accommodations available, the employer is free to choose whichever accommodation the employer wants. The key is that the accommodation that is implemented needs to be effective. Where an employee quits or retires while the parties are engaging in the interactive process because the employee is not being provided the accommodation he or she requested, courts have found that the employer cannot be found liable for failing to engage in the interactive process. Griffin v. United Parcel Service, Inc. (5th Cir. 2011) 661 F.3d 216.

    What Should the Employer do if the Employee/Applicant Refuses to Participate?
    The interactive process is a two-way street - both the employer and employee/applicant are required to participate. If the employee/applicant refuses to participate, make sure he or she understands why you need their participation and what consequence will result from their continued refusal. This is another area where good, accurate documentation of your efforts to accommodate and the employee/applicant’s response to your efforts become critical. However, employers should be careful to avoid allocating an unreasonable portion of the burden to look for reasonable accommodations on the employee. For example, if the accommodation being considered is a different position in the employer’s organization, the employer should provide the employee a list of available jobs or access to such a list. If the employee then fails to indicate what jobs he or she is interested in, the employer should document its efforts to obtain such information from the employee. This documentation can later be used to defend against any claims that the employer failed to engage in the interactive process.

    The interactive process contains a number of potential landmines for employers. It is important for employers to be well versed in what is required of them as it pertains to engaging in the interactive process with an employee/applicant. Porter Scott attorneys provide counsel regarding these and other employment-related issues and are experienced in defending against claims of disability discrimination, failure to reasonably accommodate and failure to engage in the interactive process.