Introduction

California employers are not only required to refrain from discriminating against any employee on the basis of disability, but they also have an obligation to provide “reasonable accommodations” for employees with disabilities. Additionally, the California Fair Employment and Housing Act (FEHA) provides that to determine whether there is an effective and reasonable accommodation that can be implemented, employers and employees must participate in a mutual, good-faith interactive process. While this sounds like a relatively simple obligation, it has become a topic that often confuses employers and employees alike. In litigation, the issue of the interactive process has become one of the most important aspects for litigants, counsel, and judges. An article in the September 2010 issue of the California Labor & Employment Law Review examined the steps of the interactive process “tango.” This article explores what happens when, for whatever reason, the process comes to an end.

Overview of the Interactive Process—May I Have This Dance?

In addition to the guidance provided by California state and federal courts, regulations drafted by the California Fair Employment and Housing Commission (and its successor agency, the Fair Employment and Housing Council (FEHC)) provide clarification about the interactive process—although the guidance is not exhaustive due to the individualized nature of the interactive process. The regulations do, however, provide direction on the overall objective of the process—that both employers and employees should take a common-sense, problem-solving approach to the process and should act in good faith at all times. No “magic words” are necessary to invoke the process; rather, the obligation ensues once the employer is aware of the need to consider an accommodation.

Courts have made clear that they are looking for evidence of a “cooperative dialogue” (as stated in a 2000 Ninth Circuit Court of Appeals decision) and good faith on the part of both parties. Neither side is permitted to engage in obstructionist conduct. This dialogue includes making reasonable efforts to communicate concerns and making information available to the other party. If the employee requests a particular accommodation, the employer must give it “due consideration.” (Cal. Code Regs. tit. 2, § 11069(c)(1)) If the employer rejects the proposed accommodation, it must “initiate discussion with the applicant or employee regarding alternative accommodations.” (Cal. Code Regs. tit. 2, § 11069(c)(1))

In many cases, the interactive process is seamless, and the employer and employee are able to easily identify a reasonable and effective accommodation. In others, the situation is not so simple. It may take many rounds of dialogue to identify an accommodation. The accommodation initially identified may fail or cease to be effective for either party. To this end, employers are not relieved of their obligation by providing one accommodation; rather, the employer must remain engaged and willing to consider further accommodations if the initial accommodation no longer works, or if the employee requests further accommodations.Employees are equally expected to be open and cooperative during the process, which includes providing reasonable medical documentation supporting the need for the accommodations sought.

Oftentimes, employers wonder whether they can or should only engage directly with the employee or whether a representative of the employee can also participate in the interactive process. As is true with all issues in this area of employment law, a good rule of thumb is to refrain from making rushed decisions, and instead analyze each scenario independently to determine how best to proceed. Although an employer may not be required to communicate with a representative (e.g., an attorney, a union representative, or a relative), it should be open to considering all methods of effective communication, particularly if the facts show that interacting with a representative does not obstruct the process. Indeed, at least one court found that it may be appropriate for an employer to participate in the interactive process with the employee’s attorney.

The examples and discussion below provide additional guidance (combining real-life scenarios and language from cases and from the regulations) on how to navigate this often complex and confusing interaction.

SCENARIO ONE

Employee Sits out This Dance—or Does He?

The interactive process started out fine: Ryan told his employer, Cooper, Inc., that he was suffering from a medical condition making him unable to sit down for more than four hours per day. As a result, Ryan cannot perform an essential function of his job without an accommodation, as his job typically requires working at a computer for the majority of his eight-hour work day, answering calls. Cooper reviews his restrictions and comes up with an accommodation that it believes to be reasonable and effective—it will purchase a standing desk that will hold Ryan’s computer and phone, allowing him to adjust quickly between sitting and standing throughout the day. This is not an undue hardship for Cooper, as it has previously accommodated requests to provide more ergonomic working stations for its employees.

Cooper’s HR Director contacts Ryan via email and requests a meeting to discuss its suggested accommodation. The HR Director also leaves him a voicemail on his work phone. Ryan never responds, and Cooper never reaches out to him again. Eight months later, Ryan files an administrative claim with the Department of Fair Employment and Housing (DFEH), alleging that Cooper failed to engage in the interactive process. Will Cooper be liable?

If the situation is truly this straightforward, a court will likely find that Cooper fulfilled its duty to engage in the interactive process because it reviewed Ryan’s restrictions, fashioned an accommodation, and initiated contact with Ryan. Thus, a court would likely rule that Ryan was the cause of the breakdown because of his failure to respond. However, the circumstances are usually not that simple. Say, for example, that Ryan disclosed in the initial meeting with Cooper that his inability to sit is due to bone cancer, and that Ryan is currently undergoing chemotherapy. On the day Cooper emailed and called Ryan, Ryan had received news that the chemotherapy was not working and his managers reported to human resources that he was visibly distressed. Although Cooper was aware of this, it never attempted to reach out to Ryan regarding his accommodations again. Here, a court may find that the breakdown in the interactive process is not solely attributable to Ryan and that Ryan’s behavior in not attending the meeting or responding to Cooper should be considered in light of his medical condition and the timing of his receiving the bad news he received about his chemotherapy.