Interactive Process

The California Fair Employment and Housing Act, or FEHA, requires employers to engage in a timely, good-faith Interactive Process whenever an employee requests a reasonable workplace accommodation, or an employee presents with a medical condition or disability that needs an accommodation. Generally, the interactive process is defined as a series of communications designed to ascertain whether a reasonable accommodation is feasible.

Can My Employer Skip the Interactive Process?

The only time your employer may skip the Interactive Process is by granting the full accommodation you requested.

What if My Employer Does Not Grant What I Requested?

Your employer may not simply say “no” to your request without further discussion. This is why FEHA requires the timely, good-faith Interactive Process.

Do I Need to Ask for an Interactive Process?

Your employer is required to initiate the Interactive Process regardless of whether you ask for one. There are two circumstances that trigger this obligation:

1. When you request an accommodation, or
2. When your employer becomes aware of your possible need for an accommodation.

Example: Kim shows up for work in a wheelchair with a cast on her leg. She does not say anything to her employer about this, nor does she ask for any change to her working conditions. Nonetheless, her employer is now aware that she may need an accommodation and must initiate the Interactive Process.

What are My Employer’s Obligations During the Interactive Process?

Your employer must:

1. Identify your essential job functions,
2. Identify possible accommodations other than the one you requested, and
3. Determine whether each possible accommodation would enable performance of your essential job functions.

Example: Maria is a security guard who works 11:00 PM to 7:00 AM. She is diagnosed with chronic insomnia. Her doctor requests that her shift is changed so that she can begin sleeping while it is dark. Her employer finds it too burdensome to switch her to an entirely different shift, as this would significantly inconvenience the other guard. The employer identifies Maria’s essential job functions as providing security when another worker is not on gaurd. The employer proposes shifting Maria’s schedule to 7:00 PM to 3:00 AM, which is easier to coordinate with the other guard. This will allow her to begin sleep while it is still dark. It will also enable her to perform the essential functions of her job. The employer has most likely met its obligation to engage in the Interactive Process.

What are My Obligations During the Interactive Process?

You must:

1. Provide medical documentation for a disability or medical condition upon your employer’s request, if the request is reasonable and your need for accommodation is not obvious,
2. Be responsive to your employer’s requests for information or to meet or speak with you, and
3. Keep an open mind about alternative accommodations proposed by your employer.

Example: Tseng works for a small, family-owned business in Livermore, California with a small budget. Tseng injured his back and needs a standing desk. Tseng wants a desk that costs $3,000. His employer finds this too burdensome, but e-mails Tseng to propose buying a similar desk for $1,500. The employer sends Tseng photos, specifications, and consumer reviews of the alternative desk. Tseng does not respond. He does not explain why or negotiate for what he thinks he needs. Tseng ignores the employer’s follow-up e-mails. After two weeks, the employer calls him. Tseng says he rejects their proposal and hangs up. Tseng may have broken off the Interactive Process himself even though his employer was attempting to accommodate him.

What is “Good Faith”?

There is no clear legal definition of good or bad faith. The courts look at the whole picture to determine whether you or your employer were genuinely interested in finding a resolution. Some red flags that might indicate an employer’s bad faith include:

• Unilaterally rejecting your request without further analysis or discussion.
• Failing to respond to your questions or requests in a timely manner.
• Agreeing to interact with you only on certain terms, such as an in-person meeting when you are unwell or on medical leave.
• Pressuring you to agree to an alternative they have proposed.
• Requesting medical documentation that is overly invasive, or not reasonably necessary to confirm that you need an accommodation.
• Claiming that minor or occasional parts of your duties are essential job functions.
• Unreasonably claiming hardship.
• Suggesting that you want special treatment or are not actually disabled.

Example: Karmine is the payroll manager at an insurance company in Oakland, California. She works Monday-Friday from 9:00 AM to 5:00 PM. She requests to work 7:00 AM to 3:00 PM on Fridays so she can attend a weekly physical therapy appointment for her chronic arthritis. Her boss tells her they will think about it, but she needs to keep her original schedule until they make a decision. After two Fridays with no follow-up, Karmine asks for an update. Her boss tells her they will meet with her in person the following Friday at 4:30 PM to discuss. When Karmine arrives, they tell her that since employees receive their paychecks on Fridays at 5:00 PM, it is an essential function of her job to personally hand them their checks as they walk out. Karmine points out that she processes all paychecks before 3:00 PM and can distribute them to employees before she leaves, or someone else can distribute them at 5:00 PM. Her boss replies that maybe Karmine should seek a different physical therapist that she can visit at a different time rather than ask for special treatment. The employer displayed numerous signs of bad faith throughout this process.

Assessing whether your employer violated the interactive process is a case by case scenario. Let a skilled employment attorney at Spencer Young Law provide you with a free consultation today.

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