What is the Interactive Process in Anaheim and Orange County, CA?
When an employee has a disability that affects their work, an employer must explore all reasonable options to ensure the employee remains employed and remains healthy.
“Interactive process,” as set forth more fully at California Code of Regulations, title 2, section 7294.0, means timely, good faith communication between the employer or other covered entity and the applicant or employee or, when necessary because of the disability or other circumstances, his or her representative to explore whether or not the applicant or employee needs reasonable accommodation for the applicant’s or employee’s disability to perform the essential functions of the job, and, if so, how the person can be reasonably accommodated.
My Employer never Sat down with me to discuss my return to work – is that right?
The interactive process can occur a few different ways. In general this may include a conversation, dialogue, or some form of communication, which discusses the employee’s disability, expected date of return, or alterative positions available. During this interactive process an employer should explore an employees’ experience, skill set, or ability to perform not just their original duties, but also any modified ones that still fall within their essential job functions.
What is an Employee’s responsibility during the Interactive Process?
Get them the documents!
- The most important thing to remember is to always provide reasonable medical documentation where the disability or need for accommodation is not obvious and is requested by your employer. If you don’t tell them what difficulty you’re facing, they can’t figure out how to accommodate you.
- Make sure the medical information you provide your employer specifics the existence of a FEHA disability, which puts your employer on notice of the need to accommodate. It should be noted that this does not require for you to disclose all private and confidential information. If your employer continues to claim they have not received sufficient medical information, contact us.
Keep the conversation going!
- The interactive process is a two way street and an employee must make sure to be reasonably responsive to requests made of them.
- This does not mean you have to accept the options that are immediately provided to you. Often employees are met with a “Take-it-or-leave-it” attitude and left not knowing what to do. It’ll be important to speak to an attorney to know whether or not your employer has met their obligation.
Do I have to accept whatever my Employer Suggests as an Accommodation during the Interactive Process?
Absolutely not! The term reasonable accommodation applies to both sides, so whatever accommodation is offered must take into consideration the your rate of pay, location, responsibilities, and how it may affect your health.
The law is that an employer shall not require a qualified individual with a disability to accept an accommodation and shall not retaliate against an employee for refusing an accommodation. However, the employer or other covered entity may inform the individual that refusing an accommodation may render the individual unable to perform the essential functions of the current position
Human Resources claims my medical note is not enough – what do I do?
While you are not required to disclose private or confidential information, there are times where a simple doctors note may not be enough.
Documentation is insufficient if it does not specify the existence of a FEHA disability and explain the need for reasonable accommodation. Where relevant, such an explanation should include a description of the applicant’s or employee’s functional limitation(s) to perform the essential job functions. California Code of Regulations 11068
Documentation also might be insufficient where the health care provider does not have the expertise to confirm the applicant’s or employee’s disability or need for reasonable accommodation, or other objective factors indicate that the information provided is not credible or is fraudulent.
My Employer says they did not receive my Doctor’s note – What Do I do?
Sometimes when employees out on medical leave they will be required to send a doctor’s notes to update their employer, this can sometimes unfortunately result in administrative nightmares. Our offices I’ve come across several instances where the employer claims to have never received a doctors note authorizing the employee to be out on leave.
In Criado v. IBM Corp. (1st Cir. 1998) 145 F.3d 437, the First Circuit affirmed a jury award in favor of a disabled employee whose employer capitalized on an administrative error to terminate her while on a medical leave of absence. In that case, the employee, suffering from an anxiety disorder and depression, requested an initial leave of absence which the employer granted. The employee, however, was not well enough to return to work and her doctor attempted to convey this information to the employer by faxing medical evaluations to the company’s medical unit. The parties disputed whether the fax had been received. The company terminated the employee for failure to return from her leave. Following the termination letter, the employee’s doctor wrote the company requesting that it reconsider the termination and attaching the medical evaluations. The company nonetheless refused to reconsider the termination.
The First Circuit upheld the jury’s verdict in the employee’s favor, finding that the company’s position–that it terminated the plaintiff based on a miscommunication with her doctor and not because of her disability–ignored its duty to accommodate under the Americans with Disabilities Act (“ADA”). The court stated:
“If the termination was the result of a communication mistake [the employee] should have been reinstated once her physician explained her condition and prognosis and asked for additional leave.” The court reasoned that the employer was on notice that the employee suffered from a mental impairment and that she needed time to adjust to her condition. The court stated: “An employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer; . . . both parties bear responsibility for determining what accommodation is necessary.”
If your medical leave or job is in jeopardy due to an administrative error it’s important that you reach out to and attorney in order to explore the rights afforded to you.