In short, an interactive process is the legally required discussion between employer and employee that comes into play when an employee actually has – or is perceived by the employer to have – a physical or mental health condition that makes working difficult (legally called a “disability”).
Legally an interactive process is described as a timely, good-faith, and flexible dialogue between an employer and an employee to identify and assess actual and/or potential “reasonable accommodations” for the disabled employee. A reasonable accommodation is a modification to workplace practices, procedures, or equipment that allows the employee to perform the essential functions of the employee’s job. An employer is legally obligated to provide a reasonable accommodation unless doing so would constitute an “undue burden”, which can be a very difficult standard to meet. If an employee cannot perform the essential functions of their job, even with reasonable accommodations, the employee may be terminated because of their disability. However, if the employee can perform the essential functions of their job, with or without reasonable accommodation, the employee must remain employed and his or her termination would violate California’s prohibition of against disability discrimination.
To better understand the concept of an interactive process, know that California’s public policy is to keep injured workers in the workforce unless it would be very difficult for their employer to accommodate them. To effectuate this public policy, California requires employers and employees to discuss what potential adjustments or modifications to the job may keep the injured employee working, despite the disability. The requirement of a good-faith interactive process helps assure that employers make the right decision when terminating any disabled employees and that any solutions short of termination may have been duly considered by the employer.
An employer has a very rigorous obligation to have a “timely and good-faith” interactive process with their disabled employees. Any employer with five or more employees can be sued under the California Fair Employment and Housing Act (called “the FEHA” and pronounced “fee-hah”) for failing to engage in an interactive process with their employees.
Employers – both big and small, government and private sector – frequently botch the interactive process. Here are several common ways that employers get the interactive process wrong:
Not Informing the Employee of the Purpose of the Interactive Process Meeting. It is common for employers to hold ambush-style interactive process meetings with their disabled employees. In these instances, the employee is not told what the meeting is about in advance; merely that the employee is required to show up for a meeting, usually with Human Resources. The employee is then asked, on-the-spot, to provide any accommodations or else be terminated.
Conducting an interactive process in this manner deprives the employee of any meaningful context for the interactive process, including that they may be terminated because of their disability if no accommodations are ultimately identified. Ambush-style interactive process meetings also deprive the employee of any ability to prepare in advance for the meeting by speaking with their own medical providers, reviewing medical documentation, and reviewing what their own actual or perceived work limitations are.
Delaying or Rushing the Interactive Process. A lawful interactive process must be “timely”. It follows that the process cannot be unreasonably delayed, nor rushed once it is initiated. When the employee requests an accommodation, or when the employer otherwise believes the employee is disabled, the interactive process must be initiated. Employers cannot lawfully set up disabled employees for failure by delaying an interactive process with the employee, and thereby delaying any requested accommodations that allow the job to be performed successfully.
Similarly, employers frequently try to satisfy their rigorous obligations under the FEHA by attempting to complete the interactive process with a single short meeting or discussion with the employee. The interactive process is not intended to be a “one-and-done” meeting, but a good-faith, problem-solving process that takes as long is required to identify effective accommodations. After reasonable accommodations are identified, they must be tried out to assess their overall effectiveness, and if ineffective, the accommodations need to be adjusted via one or more additional interactive process discussions..
Not Understanding the Employee’s Precise Medical Limitations. As part of the interactive process the employer is required to identify the employee’s precise medical limitations and identify how those medical limitations actually impact the employee’s underlying job.
Too frequently, employers will rush the process without understanding what the employee’s actual medical conditions are, such as terms used in a doctor’s notes or workers’ compensation reports (i.e. “PQME Reports”). Failing to identify the precise limitations often cause employers to over-exaggerate the gravity and seriousness of sometimes very minor medical limitations that do not at all affect employee job performance. Firing an employee based upon incorrect and exaggerated beliefs constitutes disability discrimination, even if the employer’s express motive was to protect the employee from future injury.
Not Understanding the Actual Job Functions. Disabled employees are often terminated when their actual health limitations do not actually impact their ability to work. For example, it is likely unimportant that an administrative assistant or office worker - has a 30-pound lifting limitation, a typically sedentary position that does not require any heavy lifting.
Employers will frequently fail to identify what the underlying job physically actually requires of their disabled employee during the interactive process, causing the employer to terminate based off bad information. This situation typically arises when executive level employees, such as Human Resource officers or workers’ compensation insurance adjusters, decide to terminate without knowing what the employee’s job actually entails (called “the essential functions”), typically after relying upon a generic, outdated, or inaccurate job description. The same employees are terminated without the employer actually speaking with the employee or the employee’s immediate supervisor about what is physically required of the employee.
Not Offering Any Employer-Provided Accommodations. The interactive process is intended to be a two-way street. Both the employer and the employee must participate in the process in good-faith. Employers too frequently will place the burden of identifying potential accommodations entirely on the employee. Merely asking the employee if any reasonable accommodations exist will not likely satisfy the employers rigorous obligations under the FEHA, especially in the context of a rushed interactive process. Further, if the employee cannot continue to perform their current job with or without accommodations, employers are required to provide the employee with any open, vacant, and funded positions (called a “reassignment accommodation”). The employer must then consider whether the disabled employee can perform the essential functions of those open, vacant and funded positions with or without accommodations.
Has your employer botched your interactive process? Call the Law Office of Brian Mathias.