Most California employers and employees are aware of the terms “interactive process” and “reasonable accommodation,” but they are often puzzled at how these terms apply to a workers’ compensation claim.
Many claims have resulted in avoidable litigation due to an employer’s failure to engage in a timely, good faith, interactive process to determine effective, reasonable accommodations for an employee or applicant with a known physical or mental disability or known medical condition.
Under the California Fair Employment and Housing Act (FEHA) and the Americans Disability Act (ADA), an employer must initiate the “interactive process” once it knows that an employee or applicant has a physical disability, mental disability, or medical condition and the employee or applicant requests a reasonable accommodation, or the employer becomes aware of the need for an accommodation.
As set forth in the California Code of Regulations, the “interactive process” means that a timely, good-faith communication takes place between the employer or other covered entity and the applicant or employee (when necessary) in order to explore whether reasonable accommodations are needed to perform the essential functions of a job and how that person can be reasonably accommodated.
When engaging in the process, direct communications between the employer and employee or applicant are preferred, rather than communicating through a third party. To satisfy the employer’s obligations to engage in the interactive process under FEHA and ADA requirements, the employer should contact the employee or applicant directly to determine whether they need reasonable accommodation.
It is imperative that employers have policies and procedures governing accommodations in the workplace which would generally be made known, described, and provided to each employee or applicant to inform them on how to request an accommodation, and how or with whom the designated responsibility to communicate lies throughout the process. The employer must set up a successful centralizing and accommodation process through their HR department or some other central person or body to keep a consistent practice throughout the organization. The selected individuals within the organization shall be duly trained on the confidentiality required when dealing with an employee's medical condition and medical information.
The trend in California courts is to impose liability on employers for failing to engage in an interactive process when a reasonable accommodation existed that would have enabled the employee or applicant to perform the essential functions of the job. Legally speaking, there is a specific process an employer must undertake when an employee or applicant has a disability and needs what is known as a reasonable workplace accommodation. This undertaking is known as the “interactive process.”
When Is the Interactive Process Triggered?
The interactive process is triggered as soon as the employer becomes aware that the employee or applicant may have a mental or physical impairment that limits their ability to perform any aspect of their job. While an employee or applicant may disclose to the employer that they have an impairment that affects their ability to do the job, they are not required to specifically request accommodation or disclose that they have a disability requiring accommodation. This request does not have to mention the ADA or use any other phrase for accommodation. The employer must be well trained to recognize such a request, which is why educating staff is so important.
As a collaborative process, the employee or applicant has a duty and obligation to provide documents requested by the employer to support a request for accommodation. This should involve a dialogue between an employee or applicant and their employer concerning the employee’s limitations, capabilities, and the disability, in general, to determine whether the employer can provide the employee or applicant with reasonable accommodation. Whether an accommodation for a person with a disability is reasonable or unreasonable is determined on a case-by-case basis.
The employer, or any representative of the employer, should act quickly to avoid delays and ensure that the key person who deals with the employee or applicant handles the accommodation process from start to finish and is consistently communicating with the employee or applicant so that they know what is expected. If the employee or applicant fails to respond to the employer’s attempt to provide accommodations, then the employer has satisfied their duty under the ADA in good faith. It is imperative that all forms of communication are documented.
Often, an employer’s workers’ compensation insurance carrier (or its third-party claims administrator) will receive notice from the employee or applicant’s physician that the employee or applicant can perform regular, modified, or alternative work. The insurance carrier will contact the employer to discuss any work restrictions outlined by the physician to determine whether the employer can accommodate the employee.
Typically, when an employer receives a notice from the workers’ compensation insurance carrier that an employee or applicant has permanent or temporary work restrictions, it is the employer’s obligation to engage in the interactive process directly with the employee. Thus, employers cannot rely on their communications with the workers’ compensation carrier regarding an employee’s need for accommodation to fulfill the employer’s obligations under the ADA and the FEHA. If the employee or applicant has requested accommodation and the employer has not talked to them concerning their limitations or provided reasonable accommodations, litigation may arise for failure to engage in an interactive process.
The next step is to learn about the employee’s limitations. Under the ADA, when an employee or applicant requests an accommodation and the need for the accommodation is not obvious, the employer can request additional medical documentation to help determine whether the employee or applicant has a disability and needs the requested accommodation.
It is always advisable to talk to the employee or applicant first to become familiar with the limitations, and what is going to work best for them to determine which accommodations the employer will provide. Reasonable documentation might include the nature of impairment; the severity and duration of the impairment; what activities are essential job functions that the impairment limits; and the extent to which the impairment limits the ability to perform the essential functions. The employer may ask for documentation beyond what is necessary to assess the requested accommodation. A simple doctor’s note often does not give enough information or understanding to the employer, so the employer might need additional medical clarification or documentation.
Next, the employer is urged to determine the applicable accommodation to each individual employee or applicant, which depends on the individual employee or applicant’s job description and medical condition. Job descriptions are a big part of the process, and it is from here in which the employer start determining whether the essential functions can be performed due to the medical condition. Therefore, these job descriptions must be kept up to date since they are an important key to success in avoiding future litigation.
In order to do a proper analysis, the employer must determine which job functions are essential and which can be reasonably accommodated. The employer is not required to remove nonessential functions or marginal functions. Therefore, the employer must know which job functions are essential and look at the medical assessment that the treating doctor has provided. This step follows a form of medical documentation received from a medical provider, or from the employee or applicant, directly determining the applicant’s medical condition. It is critical to provide the medical provider with an accurate job description outlining essential functions and nonessential functions.
The employer will then select the most appropriate accommodation. Considering what accommodation is least expensive or less burdensome to implement is allowable, as long as it is effective and allows the employee or applicant to perform their essential functions and gain equal access to benefits and privileges of employment.
Litigation most often happens when employers have failed to document and record all of the accommodation attempts communicated to the employee or applicant and their responses. If the employee or applicant fails or refuses to give any medical documentation, then the employer’s obligation ends, and, in some cases, the employer can take the next step and terminate the employee. Thus, documenting everything can avoid future litigation.
The employer is urged to monitor the limitations, which is a very important step in this process. Employers are also encouraged to collaborate continuously with the employee or applicant after the selected accommodation is implemented. It is possible—due to a wide variety of reasons—that the selected accommodation stops being utilized or provided. The employer is urged to stay on top of monitoring the applicant's ability to perform the job duties under the accommodations provided, and whether they are effectively working. Open dialogue is recommended to keep employers informed if there are any changes or problems the employee or applicant is experiencing in order to avoid any liabilities or other issues.
What happens if the employer follows all the recommended steps, but proving reasonable accommodation would cause undue hardship on the employer? There must be factual information to prove there is an undue hardship, and the nature and cost of accommodation needs to be considered and compared to the financial resources provided for each employee or applicant, as well as the impact on the operational functions of the business.
The employer should always consider an alternative position for which the employee or applicant may qualify—and always use termination as a last resort.