An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

the dog. For example, an employee who uses a wheelchair may use a long, retractable leash to allow her service dog to pick up or retrieve items. She may not allow the dog to wander away from her and must maintain control of the dog, even if it is retrieving an item at a distance from her. Under control also means that a service dog should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, if a dog barks just once, or barks because someone has provoked it, this would not mean that the dog is out of control. 1555 The care or supervision of a assistive animal is the responsibility of his or her owner, not the school. 1556 D. T HE E MPLOYEE I NTERACTIVE P ROCESS Under FEHA employers are required to engage in a “timely, good faith, interactive process” with the employee or applicant in response to requests for reasonable accommodation under FEHA. 1557 Similarly, the Ninth Circuit has held that the interactive process imposes a continuing obligation to consider alternative accommodations if a presently implemented accommodation is ineffective. 1558 Further, the EEOC regulations require an interactive process that involves participation by both parties: “[T]he employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.” 1559 Although the regulations do not explicitly assign responsibility for a failure in the interactive process, the regulations do acknowledge:

“[I]n some instances neither the individual requesting the accommodation nor the employer can readily identify the appropriate accommodation. For example, the individual needing the accommodation may not know enough about the equipment used by the employer or the exact nature of the work site to suggest an appropriate accommodation. Likewise, the employer may not know enough about the individual’s disability

or the limitations that disability would impose on the performance of the job to suggest an appropriate accommodation.” 1560 With this limitation in mind, a school’s obligation to engage in the interactive process to identify and implement a reasonable accommodation must be made in good faith. Similarly, the employee must make a good faith effort to engage in the interactive process.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 349