In a prior post, I discussed what triggers the obligation to engage in the interactive process. Once that obligation arises, what is it employers are required to do?
According to California’s new disability regulations (specifically, 2 CCR sec. 7294.0), "Both the employer or other covered entity and the applicant, employee or the individual’s representative shall exchange essential information identified below without delay or obstruction of the process."
[Does the requirement to involve the applicant or employee’s representative mean they get to bring their lawyers? Probably not. "[O]rdinarily, a disabled employee may not require an employer to communicate directly with the employee’s attorney, because the interactive process contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings." Claudio v. Regents of University of California, 134 Cal.App.4th 224, 228 (2005).]
To fulfill its obligations, the employer must do one of the following:
- Grant the applicant or employee’s requested accommodation.
- Reject it "after due consideration" and initiate discussion of other possible accommodations. Rejecting an employee’s suggested accommodation without proposing a practical alternative constitutes failure to engage in the interactive process as a matter of law.
- If the need for accommodation is not obvious, and the applicant or employee has not already provided "reasonable medical documentation confirming the existence of the disability and the need for accommodation," the employer can require him or her to do so.
- If information provided by the applicant or employee needs clarification, then the employer can identify what is unclear, specify what further information is needed, and allow the individual a "reasonable time to produce the supplemental information."
- When necessary to assess a requested accommodation or "to advance the interactive process," the employer can consult with experts.
- If reassignment to a different position is being considered as an accommodation, the employer can request information concerning the applicant’s relevant education and work experience.
Once the necessary information has been exchanged, the employer must consult with the applicant or employee to identify potential accommodations and assess their effectiveness. While the employer must consider the individual’s preference, it has the right to decide which accommodation to implement.
After implementing an accommodation, an employer should follow up with the employee to ensure that the accommodation is effective. If it isn’t, the employer has to start this process over again. This is an ongoing obligation.
In most situations, an effective interactive process will require face to face discussions between the employer and the individual seeking accommodation. While those discussions should be informal, careful documentation is a "must." Under state or federal law, failure to engage in the interactive process is itself a statutory violation. So if litigation erupts over what caused a breakdown in the process, the employer will want to have records describing the steps it took.
Next we’ll look at some of the different types of accommodations.