A “timely, good faith” Interactive Process is now a stand-alone statutory requirement in the California Code of Regulations (CCR, title2, section 7294.0). California State and Federal laws define the “Interactive Process” as an on-going communication between the employer and the applicant or employee with a known disability in an effort to provide reasonable accommodation.
It is unlawful for employers to fail to engage in a timely, good faith, interactive process whether or not the interactive process would have resulted in an obligation to provide a reasonable accommodation.
Under the Fair Employment and Housing Act (FEHA), if an employer fails to reasonably accommodate an applicant or employee, the Fair Employment and Housing Commission can order the employer to cease and desist the discriminatory practice; to hire or reinstate; and award actual damages including, but not limited to, lost wages; emotional distress damages; and administrative fines not to exceed $150,000.00. If the matter is heard in civil court, the damages would be unlimited.
What is “Good Faith”?
An employer and employee must communicate directly with each other to determine essential information and neither party can delay or interfere with the process. If an employee refuses to respond or participate in the Interactive Process, you should document in writing your efforts to contact the employee and offer the Interactive Process. Contact RESIG’s Sr. RTW/Ergo Advisor for more information.
How does an employer become aware of a need for an accommodation?
An employer may become aware of the need for an accommodation by:
- Request from an employee
- Request made by a third party on behalf of the employee
- Request made by a representative of the employee (such as a spouse)
- Request initiated by a manager who becomes aware of a need for an accommodation either from the employee or through observation
The request may be as direct as a specific oral or written request or may be an unassuming mention of a difficulty due to a medical condition.
Once an employer is aware of the need for an accommodation due to medical work restrictions the employer is obligated to begin this good faith, interactive process in a timely manner.
Another area to be aware of is when placing employees on a 39 month rehire listing. FEHA obligates the employer to look at all vacant jobs. Don’t assume that an employee is not able to perform a job.
Communicate, follow up and document your interactions throughout the Interactive Process.