HR Advisory – Owning Your Interactive Process
The ADA and California’s FEHA disability regulations require employers to initiate the interactive process when any of the following events occur:
- 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.
- 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 are not in violation of laws prohibiting inquiries into medical information.
To comply with FEHA, an employer may either:
- Grant the employee or applicant’s requested accommodation, or
- Reject the initial accommodation and initiate discussion regarding alternatives.
When the disability or need for accommodation is not obvious, the employer may require an employee requesting accommodation to provide reasonable medical documentation. Employers may consult an expert, such as a company physician, during the interactive process.
When needed to assess a requested accommodation, the employer shall analyze the essential functions of the employee’s job.
In consultation with the employee, the employer should identify potential accommodations for the employee, and consider the effectiveness of the accommodation to allow the employee to perform essential functions and, the employee’s preference in implementing an accommodation. A record of the interactive process should be maintained by the employer.