Practical Steps for Employers to Engage in the Interactive Process and Provide Reasonable Accommodations
The federal Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) require employers to engage in the interactive process to locate reasonable accommodations to enable persons with physical and/or mental disabilities to perform the essential functions of their job. Following are examples of steps employers can take as part of that process.
First, employers must work with the employee to clarify the employee’s work restrictions (not the disability itself). This includes confirming both the nature of the restrictions, e.g., no lifting greater than 10 pounds, and the term of the restrictions, e.g., 3 weeks, with the understanding that either or both of these factors may change over time. Employers can then review and discuss the employee’s current job description/job duties with the employee and compare the employee’s work restrictions to the essential (not marginal) functions of the position to determine whether the employee can perform the essential functions with or without reasonable accommodation. If reasonable accommodation(s) can be made to enable the employee to perform the essential functions of the employee’s current position, those accommodations should be provided. If more than one accommodation is available, the employer should discuss with the employee to determine the best accommodation(s) among those options. After an agreement is made, employers should document the discussion and agreement and provide written confirmation to employee.
If it is determined that there are no reasonable accommodations that will enable the employee to perform the essential functions of the employee’s current position, the employer and employee must review and discuss the job descriptions/job duties for all other available positions which the employee is qualified to perform and follow the same steps taken with regard to the employee’s current position. In looking at alternative positions, employers need to consider other jobsites if they exist. If the employee is qualified and able to perform the essential functions of a vacant position with or without reasonable accommodation, the employer should propose that (and other similar) alternative position as a reasonable accommodation, document the discussion and (as applicable) agreement, and provide written confirmation to the employee.
If, after exhausting all available options, it is determined that there is no reasonable accommodation available that will enable the employee to continue working, a leave of absence may be considered as a last resort. Leaves of absence may also be an option where they are expressly requested by the employee, and may be required by other applicable laws. Employers should consult legal counsel before taking this step when it is not requested by the employee.
After a reasonable accommodation has been provided, including a leave of absence, employers should follow up with the employee to ensure that the arrangement is working and to discuss any changes to work restrictions/reasonable accommodations and steps moving forward, and should document these discussions in writing/provide written confirmation to employee.
The interactive process is an ongoing obligation – it is fluid, and should be revisited as the employee’s or the employer’s situation changes and/or other positions become available that might be consistent with the employee’s work restrictions.
Remember that reasonable accommodations are available to applicants, in addition to current employees, and should be considered as part of the hiring and promotion process.
This legal update and any use of its information does not create an attorney-client relationship. Nothing contained on this website should be considered legal advice for any specific employer or employment situation. Consult legal counsel before taking any action as a result of information contained herein.
