Duty to Engage in the Interactive Process
In addition to providing a reasonable accommodation for disabled employees, employers are also required to engage in a timely, good faith interactive process to determine what kind of accommodation the employee needs.
Under California’s Fair Employment and Housing Act (“FEHA”), the employer’s failure to engage in the interactive process is an unlawful employment practice separate from any alleged discriminatory treatment.
Courts have held that the “interactive process” should be informal, non-ritualized, and conducted in good faith between the employer and employee to find an accommodation which will enable the employee to perform the job effectively. The law is clear that the employee must first request an accommodation; however the employee is not required to use any magic words. If the employer knows about the employee’s physical condition, the interactive process obligation arises “once the employer becomes aware of the need to consider an accommodation.”
California courts emphasize that the interactive process is a continuous, “cooperative problem-solving” endeavor, and that communications must be open with each side airing its concerns in an effort to find a workable solution. The employer has a somewhat greater responsibility to identify workable solutions since the employer generally has better information about open or available job positions or the types of accommodations that may be available.
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