What is the Interactive Process in California? - Eldessouky law (2023)

The term Interactive Process generally refers to theProcess by which an employee who is showing symptoms of a disability or impairment asks their employer for accommodation. This legal obligation applies to both workers' compensation insurance and non-work-related injury or illness insurance.

Such accommodations include, but are not limited to, changes in work environment, schedule, or work duties that assist employees with disabilities or impairments in performing their jobs.

When an employee has a disability that affects their job, an employer must consider all reasonable options to ensure the employee remains employed and remains healthy.

Legally, there is a specific process that an employer must follow with an employee who has a disability and requires what is known as reasonable accommodation in the workplace. The undertaking is referred to as a"interactive process".

What is the Interactive Process in California?

The interactive processis a collaborative process between employer and employee to determine whether the employee is fit to return to work following an occupational or non-occupational injury, illness or condition.If this is not possible, the interactive process is designed to identify any reasonable arrangements that can be made to allow the employee to return to work.

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As set out in theCalifornia regulations, the “interactive process” means a timely, good faith communication between the employer or other entity concerned and the applicant or worker or, if necessary due to the disability or other circumstances, his or her representative, to check whether the applicant or worker Does or does not need a reasonable accommodation for the applicant's or employee's disability to perform the essential duties of the position and, if so, how the individual may be adequately relieved.

The trend in California courts is to hold employers liable for failure to participate in the interactive process when reasonable accommodation that would have enabled the employee to perform the essential duties of the job would have existed. (Fair Employment and Housing Act;Barnett v US Air, Inc.;Jensen vs. Wells Fargo Bank)]

Is it always necessary to initiate an interactive process in California?

There are scenarios where an employer is not required to engage in an interactive process with a disabled worker or applicant. What triggers the need for an interactive process is the employer's knowledge that the worker might be suffering from a condition that might qualify as a disability, leading to some limitations that may require adjustment. PerCal. Code reg. §11064 – 11073,Once the employer has this knowledge, the process requires that the employer and employee identify and evaluate potential accommodations that would allow the employee to perform the essential functions of the position. If the initial arrangements fail, the employer is required to proceed with the interactive process to determine if other arrangements are in place to enable the employee to perform the essential functions of the job.

An interactive process is required only when necessary to identify or implement an effective, reasonable accommodation for an employee or applicant with a disability. If an employer is willing to accommodate a specific on-site request, or the worker does not require accommodation to perform their essential work functions and/or enjoy the benefits of their employment, an interactive process is not required.

My employer has never sat down with me to discuss my return to work - is that correct?

The interactive process can be done in different ways. These include:

• conversation at eye level
• Some other types of dialogue
• A different form of communication

During this interactive process, an employer should examine an employee's experience, skills, or ability to perform not only their original duties, but also any modified duties that still pertain to their essential work functions.

What is an employee's responsibility during an interactive process?

There are a number of different steps that an employee must complete during an interactive process.

Procurement and provision of employer documents

• The most important thing to remember is to always provide appropriate medical documentation if the disability or need for housing is not obvious and is required by your employer. If you don't tell them what difficulties you're facing, they won't be able to figure out how to adapt to you.
• Make sure the medical information you provide to your employer indicates the presence of an FEHA disability, which alerts your employer to the need for an adjustment. It should be noted that this does not require you to disclose any private and confidential information. If your employer continues to claim that they did not receive adequate medical information, contact us.

Continue the conversation with your employer (if possible)

• The interactive process is a two-way street and an employee must ensure that they respond appropriately to requests made by them.
• This does not mean that you have to accept the options that are immediately presented to you. Employees are often confronted with a take-it-or-leave-it attitude and don't know what to do. It is important to speak to a lawyer to find out whether or not your employer has fulfilled their obligation.

Do I have to accept everything my employer proposes as accommodation during an interactive process?

Absolutely not.The term reasonable accommodation applies to both parties, so any accommodation offered must take into account your pay, location, responsibilities and the potential impact on your health.

The law states that an employer may not require a qualified person with a disability to accept placement and may not retaliate against an employee who refuses placement. However, the employer or other entity concerned may inform the individual that denial of accommodation may result in the individual being unable to perform the essential functions of the current position

The HR department thinks that my medical certificate is not sufficient - what can I do?

Although you are under no obligation to disclose private or confidential information, there may be times when a simple medical certificate is not sufficient.

Documentation is insufficient if it does not indicate the presence of an FEHA disability and explain the need for reasonable accommodation. Where appropriate, such a statement should include a description of the applicant's or employee's functional limitations to perform essential job functions.

Documentation may also be inadequate when the healthcare provider does not have the expertise to confirm the applicant's or employee's disability or to make reasonable accommodations, or other objective factors indicate that the information provided is unreliable or fraudulent.

This type of situation underscores the need to engage the services of an experienced employment law attorney who is able to handle an employer's challenges regarding such matters as an interactive process. In other words, you should not dismiss the critical importance of an interactive process and conclude that it is not yet time to retain legal representation.

Interactive Process Considerations (coming soon)

If an employee chooses not to disclose their disability to their employer and does not require reasonable accommodation to perform essential work-related duties and enjoy the benefits of their employment, an interactive process is not required. However, when an employee's injuries have made it difficult or impossible to successfully perform the job, it is important that an employer initiate an interactive process. This process allows employers to better understand how to support an employee's housing needs and engage in a solution-focused dialogue.

In most cases, the interactive process contributes to the continued employment of disabled workers. In the event that reasonable accommodation cannot be made for a worker without imposing an undue burden on the employer, it may be possible to retrain the worker, transfer him to a vacancy, or otherwise facilitate the affected worker's continued employment in a different role.

When Should You Consult an Employment Law Attorney?

Employers who fail to participate in the interactive process in good faith may be legally liable for their inaction. Depending on the nature of the worker's circumstances, failure to participate appropriately in an interactive process may serve as evidence of disability discrimination.

You can arrange an initial consultation withan experienced employment law attorneyfrom Eldessouky Law today by calling(714) 409-8991or by filling out one of oursshort online forms. Our firm charges no fee for an initial consultation and case review by our caring, dedicated legal team.