The Importance of the ADA and FEHA’s “Interactive Process” and Simple Steps Employers Can Take
Under the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), employers have an affirmative duty to engage in a timely good faith “interactive process” and to provide reasonable accommodations to disabled employees. In fact, the employer has as duty to initiate the process if the employee’s disability is known or apparent. It is important for employers to understand this “interactive process” and what they can do to comply with its requirements.
The purpose of the interactive process is to determine whether a disabled employee can perform the essential duties of his or her job, or whether a reasonable accommodation exists that would allow the employee to perform those duties. If a reasonable accommodation exists, the employer must provide such accommodation. Thus, the employer’s objective in engaging in the interactive process should be to determine three things: 1) the employee’s functional limitations, 2) whether those limitations affect the employee’s ability to perform the essential duties of the job, and 3) and whether a reasonable accommodation exists that would allow the employee to perform those duties. In order to achieve this objective, or to fully address these three issues, the employer can take the following simple steps:
STEP 1: Determine whether employee has a disability covered under the ADA or FEHA. Under the ADA, a disability is defined as an actual physical or mental impairment that substantially limits a major life activity. Under FEHA, a disability is defined more broadly to cover physical or mental impairment that merely limits (not “substantially limits) a major life activity.
STEP 2: Determine the essential duties of the employee’s job. The employer should analyze the disabled employee’s job and determine what the critical duties of that position are. STEP 3: Request medical certification. While California employers are not allowed to ask employees any specifics about the employee’s condition, the employer may request a medical certification stating only the functional limitations resulting from the disability.
STEP 4: Determine whether functional limitations affect employee’s essential duties. Based on the employee’s functional limitations, the employer should be able to determine whether employee would be prevented from performing any of the essential functions of the job. The employer should also consult with the employee to confirm that such limitations in fact prevent the employee from performing the essential duties of the job.
STEP 5: Consider any reasonable accommodations. The employer should consider any reasonable accommodations that would allow the employee to perform the essential duties of the job. The employer should timely and in good faith consult with the employee to ascertain any reasonable accommodations the employee might suggest. While the employer is required to obtain the employee’s input (so that the process is truly interactive), the employer is not required to provide the employee’s preferred accommodation — the accommodation must only be reasonable. The employer is not required to provide an accommodation that would cause the employer undue hardship.
If you still have any questions about a particular situation or would like more information regarding the interactive process or providing employee accommodations, please contact Frank J. Coughlin, Esq. at (714) 558-7886.