• An applicant or employee with a known disability requests an accommodation.
• The employer becomes aware of the need for an accommodation through a third party.
• The employer becomes aware of the need for an accommodation by observation.1
• The employer becomes aware of the possible need for accommodation because the employee has a disability and has exhausted leave under the California Workers’ Compensation Act, the California Family Rights Act, or the Family and Medical Leave Act, but the employee’s health care provider indicates that further leave is necessary for the employee to perform the essential functions of his job. Employers who offer to engage in the interactive process when an employee has exhausted a leave of absence aren’t in violation of laws prohibiting inquiries into medical information.2

An employer isn't obligated to engage in the interactive process and provide reasonable accommodation for the employee's or applicant's alleged disability when it has no knowledge of the disability.3

• In a recent case, a court concluded that an employer can be charged with knowledge of an employee’s undisclosed disability only when the disability is the only reasonable interpretation of the employer’s observation of the underlying facts. In this case, the court ruled that the employer couldn’t be charged with knowledge of an employee’s bipolar disorder based on two instances of aggressive behavior and irrational comments because bipolar disorder was not the only reasonable interpretation of the facts.4

To comply with FEHA, an employer may either:

• Grant the employee or applicant’s requested accommodation; or
• Reject the initial accommodation after due consideration and initiate discussion regarding alternatives.

When the disability or need for accommodation isn't obvious, the employer may require the employee to provide reasonable medical documentation5 (see Disability Documentation).

When needed to assess the requested accommodation, the employer must analyze the job's essential functions and may consult with experts.6

In consultation with the employee or applicant, the employer should identify potential accommodations and consider each accommodation's effectiveness in allowing the employee to perform essential functions and employee preference in implementing the accommodation.

It's important for the employer to document their interactive process efforts along the way, including meetings, phone and video conversations, and all written communications, such as notes, forms and emails. It will help keep track of what accommodations have been discussed and provided, what's been effective or ineffective, and how to proceed when circumstances change.

Documentation is also crucial in the event the employee or applicant brings a claim for failure to provide reasonable accommodation or engage in the interactive process. In those cases, courts look at the communications between the employer and employee to see where the process broke down. An employer may face liability if it can't show it was engaged in the process.

Employers should take the necessary steps to ensure the interactive process didn't break down on their end, including being responsive to all the employee's communications and following up with the employee if the employee doesn't respond to the employers' communication. By thoroughly documenting all interactive process efforts and communications, including written documents, in-person meetings, phone/video calls, etc., employers will be able to demonstrate to a court that they engaged in the interactive process in good faith.

In a recent court case, a California Court of Appeal concluded that the employer's efforts to meet their interactive process and reasonable accommodation obligations were sufficient after the employer was able to prove they offered their employee a leave of absence, an alternative position for which they were qualified in order to return to work, and numerous email and written communications about potential accommodations.7

Similarly, in another case, the employer provided sufficient evidence that the employer promptly engaged in the interactive process and offered accommodations — and any delay was due to the employee, not the employer.8

If the employer considers reassigning the employee to another position, the employer may ask about the employee’s qualifications for that position (see Reassignment as a Reasonable Accommodation).

• Employers should note that, though the California regulations cited above refer to exhausting “leave under the California Workers’ Compensation Act,” workers’ compensation doesn’t provide a protected leave of absence like CFRA and FMLA. Rather, it is a no-fault insurance system designed to provide benefits to injured workers, such as medical care and temporary wage replacement while the employee is unable to work. Employees receiving workers compensation benefits are protected from discrimination based on their receipt of workers compensation benefits, but that’s different from a protected leave of absence like CFRA and FMLA. To read more about the workers’ compensation system, see Workers’ Compensation.

“Perceived” Disabilities and the Interactive Process

An interviewing manager who perceives an otherwise qualified applicant as having a disability can’t reject the applicant without engaging in the legally-required “interactive process.” Similarly, an employer may perceive an employee returning to work with restrictions following a job-related injury as disabled. If so, the employer shouldn’t terminate or discipline the employee without engaging in the interactive process.

1. 2 CCR sec. 11069(b)