Terminating the Employment Relationship

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. 85

Note that the interactive process imposes a continuing obligation to consider alternative accommodations if a presently implemented accommodation is ineffective. 86

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. 87 a. Steps of the Interactive Process Once the need for reasonable accommodation arises, either by the employe e’s request or by the employer’s knowledge of the employee’s disability, the employer must engage in the following steps: 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 88 ; and 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. 89 Analyze job functions and establish essential and nonessential job tasks; Identify precise limitations of the position held by the employee;

The EEOC’s internal interactive process guidelines, which apply to both public and private sector employers, require that:

LCW Practice Advisor

 Accommodation requests by an employee or applicant be defined liberally and broadly to

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 41