Terminating the Employment Relationship

In selecting from among several alternatives of reasonable accommodation, the expressed choice of the employee/applicant must be given primary consideration unless another equally effective accommodation exists which may be utilized instead. 81

The EEOC’s internal interactive process guidelines, which apply to both public and private sector employers, require that:  Accommodation requests by an employee or applicant be defined liberally and broadly to include both oral and written requests by an employee, an applicant or a healthcare provider, a family member or another representative.  The decision to provide the reasonable accommodation be made quickly. For example, the EEOC established its own internal guidelines which gives the decision maker 15 days to make the decision if it is within his/her authority to do so and 20 days for accommodations that require approval from a higher authority.  Interaction is essential to the process of locating a reasonable accommodation.  The denial of an accommodation be supported by specific, legitimate reasons. 82

LCW Practice Advisor

b. Documentation and Follow Up After every interactive process meeting, an employer should prepare a letter to the file or the employee documenting the accommodations considered. The documentation should reflect an analytical and good faith consideration of each proposed accommodation, and explain why or why not the accommodation could not be offered. This information will be crucial if an employee later files a lawsuit based on failure to engage in the interactive process or failure to reasonably accommodate, both of which are independent causes of action under FEHA.

In general, the documentation should reflect:

That the employee had the option to be represented and whether the representative attended the meetings.

That the employer was flexible in terms of scheduling the meeting(s).

Whether the meeting was tape recorded.

Accommodations suggested by the employer and employee.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 41