This is part four of five in our weekly series on Five Common Employment Law Mistakes, in which we discuss common pitfalls that employers encounter, and provide suggestions on how to avoid these mistakes. In this five-part weekly series, we are discussing the following topics:

1. Misclassifying Employees and Contractors

2. Poorly Managing and Documenting Employee Performance Concerns

3. Treating Similarly-Situated Employees Differently

4. Neglecting to Engage in the Interactive Process

5. Failing to Update the Employee Handbook

This week, we are discussing reasonable accommodations and the importance of engaging in the interactive process.

Neglecting to Engage in the Interactive Process and Explore Reasonable Accommodations

The interactive process is a critical aspect of ensuring compliance with disability discrimination laws. Employers are encouraged to approach this process in a collaborative and flexible manner, working with employees to find reasonable accommodations that enable them to perform their job duties effectively, without imposing an undue hardship on the employer.

As mentioned above, we often hear from our clients when they have reached the decision to terminate an employee. One of the first questions we ask in this scenario, is whether the employee has raised any medical concerns or complained about needing modifications to their job. In many cases, the client will say that the employee has complained about a medical issue but has not provided a doctor’s note nor asked for an accommodation, and therefore the employer has not taken any action to further communicate with the employee or engage in what is known as the “interactive process” with them.

The interactive process is a communication and problem-solving mechanism between employers and employees to identify and implement reasonable accommodations for individuals with disabilities. This process is mandated under both federal law, specifically the Americans with Disabilities Act (ADA), and California's Fair Employment and Housing Act (FEHA). A reasonable accommodation is any change to the job, work environment, hiring process, or application process that allows an employee with a disability to perform their job duties and have equal employment opportunities. For example, a reasonable accommodation might be changing the employee’s job duties, providing special work equipment, or changing the employee’s working hours.

During the interactive process, the employee and employer communicate about whether a reasonable accommodation is needed, what the accommodation might be, and whether such accommodation poses an “undue hardship” on the employer. An “undue hardship” for the employer means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. Employers must assess each request for an accommodation on a case-by-case basis.

While the employee does have an affirmative obligation to initiate the interactive process by asking for an accommodation, when an employer fails to proactively assess whether one is needed after learning of the employee’s disability, it puts the employer in a much more difficult position to defend a future “failure to accommodate” claim by the employee. Thus, when first put on notice of an employee’s disability or medical issue, be sure to not only inquire about the employee’s needs, but also document doing so.

We hope that this discussion about engaging employees in the interactive process has been helpful. Please follow along for Part 5, in which we will discuss the importance of an up-to-date employee handbook. Maier Law Group can assist with navigating these common pitfalls and proactively creating a healthy and effective workplace.

Read the rest of the series here:

Part One: Misclassifying Employees and Contractors
Part Two: Poorly Managing and Documenting Employee Performance Concerns
Part Three: Treating Similarly-Situated Employees Differently
Part Four: Neglecting to Engage in the Interactive Process
Part Five: Failing to Update the Employee Handbook

Author: Emily Harrington, Associate.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.