Terminating the Employment Relationship

1. 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. 75 Similarly, under the ADA, an employer can be liable for failing to engage in the interactive process in good faith if a reasonable accommodation was possible. 76 The interactive process requires participation by both parties and typically must begin when an employee requests an accommodation. However, an employer may have an obligation to initiate an interactive dialogue with an employee even when the employee has not requested an accommodation. If an employer knows (i.e., “actual knowledge”) or should know of (i.e. “constructive knowledge”) an employee’s disability, the actual or constructive knowledge of the employer creates an obligation for the employer to initiate the interactive process. California courts have adopted EEOC regulations that require employers to initiate the reasonable accommodation interactive process when the employer:

Knows that the employee has a disability;

Knows, or has reason to know, that the employee is experiencing workplace problems because of the disability; or Knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. 77

Note that the interactive process imposes a continuing obligation to consider alternative accommodations if a presently implemented accommodation is ineffective. 78

To establish that an employer has met its obligation to engage in the interactive process and consider potential reasonable accommodations, a California Court of Appeal has held that the employer must show that an accommodation was offered and refused, that there were no reasonable accommodations available, or that the interactive process broke down due to the employee’s failure to engage in the process in good faith. 79 a. Steps of the Interactive Process Once the need for reasonable accommodation arises, either by the employee’s request or by the employer’s knowledge of the employee’s disability, the employer must engage in the following steps:

Analyze job functions and establish essential and nonessential job tasks;

Identify precise limitations of the position held by the employee;

Identify possible accommodations and assess how each will enable the employee to successfully perform the position; Consider the preference of the employee or applicant to be accommodated and implement the accommodation that is most appropriate for both the employee/applicant and the employer 80 ; and

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 40