Tips for a Meaningful Interactive Process
One of the most challenging aspects of being an employer in California, and one that we are constantly asked about through Golden State Risk Management Authority’s HR Hotline program, is navigating the interactive process to determine whether an injured/ill/disabled employee can be reasonably accommodated. As such, we thought this an excellent topic for our first HR article – another benefit GSRMA provides to aid its public agencies through the often muddy waters of employment law and human resources.
Basic definitions. First, it is important to understand some basic definitions. A serious medical condition under the Family Medical Leave Act/California Family Rights Act (“FMLA/CFRA”) means an illness, injury or condition of the employee (or the employee’s spouse, parent, or child) that involves either inpatient care at a medical facility, or continuing treatment or supervision by a health care provider. An individual with a disability is defined by the Americans With Disabilities Act (“ADA”) as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. California expands the definition of “disability” to an impairment that makes one or more major life activities “difficult.” A reasonable accommodation is essentially any change to the workplace or the way in which a job is customarily done to enable an employee with a disability or serious medical condition to continue to work or return to work. The accommodation cannot impose an undue hardship on the employer by, for example, removing an essential job function from the employee. An employee’s request or need for a reasonable accommodation triggers the employer’s obligation to engage in a good faith, interactive process with the employee to determine whether/how the employer can accommodate the employee.
When exactly does the obligation for an employer to engage in the interactive process arise? In general, the employee must first come to the employer to request an accommodation and/or make the employer aware of a serious medical condition or disability – often by providing a doctor’s note. However, the need also arises when management becomes aware that an employee may need an accommodation through a third party or direct observation. In other words, if an employee makes an off-hand comment to you about an old back or knee injury flaring up, you have a duty to inquire further to see whether the interactive process is required. Another potential scenario is where an employee exhausts his or her FMLA/CFRA leave for a serious medical condition, or some other leave, and is unable to return to work without accommodation – this situation also triggers the obligation of the employer to engage in the interactive process to determine whether that employee can return to work with an accommodation.
Once that obligation has been triggered, what does the interactive process look like? Of course, it will look different in each situation but there are some general dos and don’ts that we recommend. First, ensure that you have a current, detailed and accurate job description for the employee. Provide that job description to the employee and request that (1) he/she bring it to his/her treating physician and (2) the doctor designate in writing any restriction or limitation placed on the employee in the context of the employee’s job duties (but make clear to the employee that NO diagnosis or treatment should be included from the doctor – that is confidential medical information that you, as the employer, should not have or maintain in your records). If you already have a doctor’s note from the employee but it does not contain any suggested limitation/restriction, you should request that the employee return to his/her doctor with the job description to provide suggested restriction/accommodation. We cannot stress enough the importance of your need for these limitation/restriction from the doctor – without these, employers cannot have a meaningful interactive process.
Meet with the employee. Once the employee has visited with his/her doctor, the manager/supervisor should meet with the employee personally. This is not the type of issue that should be handled via telephone or email – it requires good, old-fashioned eye contact and in-person interaction. During this meeting, review the employee’s job description and particularly the job’s essential functions. Then, discuss those job duties in the context of the physician’s recommended limitations – what duties and tasks will the restrictions inhibit? It is extremely important that the employee participate in this conversation – do not unilaterally dictate this information to the employee. There needs to be a two-way discussion and the employee’s thoughts are crucial.
After all of this is on the table, discuss what you as the employer can and cannot reasonably accommodate. What duties can be accomplished with some modification? This question may or may not provide an easy answer – there are all kinds of possible accommodations. Some basic examples include: providing accessible break rooms/areas; acquiring or modifying furniture, equipment or devices; part-time or modified work schedules or more frequent breaks; and changing when/how an essential function is performed. Again, involve the employee in this discussion. Ask the employee his/her ideas regarding accommodations. If there are limitations that cannot be accommodated, it is important to discuss and articulate to the employee why those limitations cannot be reasonably accommodated.
Document the outcome of the meeting. At the conclusion of the meeting, list in writing the outcome of the meeting – this should include which restrictions/limitations can/cannot be reasonably accommodated and specify what accommodations, if any, are going to be made. If the employee cannot be reasonably accommodated, and therefore cannot return to work at that time or must take a leave of absence, ensure that is clearly stated. As always, DOCUMENT, DOCUMENT, DOCUMENT! This is where having a form can come in handy as a useful tool for managers and supervisors. Such a form should include things like the employee’s name, job title, the date of the meeting(s), restrictions or limitations of the employee, what job duties are affected, possible accommodations identified, and the outcome. You may also want to include a place for signatures on the document that the aforementioned things were discussed and, if a consensus was reached, that all are in agreement.
Make sure you have a written procedure for handling requests for reasonable accommodation and the interactive process. As employment lawyers, we always harp on having policies and procedures in place but this is one area where it really is crucial because employers are confronted with ill or injured employees regularly. Having a written policy and set of procedures assists managers and supervisors by giving them a roadmap for how to handle these types of requests and ensures that all employees are treated the same (provided the policy/procedures are followed). It also benefits employees to know who they should go to and what information they need to make such a request.
Failure to engage in the interactive process. There are serious consequences for employers that fail to engage in a good faith interactive process. Employers that fail to engage in a good faith, interactive process can be liable to the employee for both compensatory and punitive damages under the ADA, the California Fair Employment and Housing Act, and/or FMLA/CFRA. In addition, managers and supervisors may be found personally liable under the FMLA. This is addition to the time and expense the employer will pay to defend such an action.
Above all else, remember that flexibility and open communication are key. Managers and supervisors must be willing to listen with open ears to employees and be flexible in providing accommodations and employers must provide managers any training necessary to fulfill the employer’s obligations. We hope this article has been useful for providing general guidance. For assistance with your particular situation, please contact GSRMA at (530) 934-5633, the HR Hotline at (877)780-7099, or contact your General Counsel.
Article provided by: Jami Terrell, Hunt Jeppson & Griffin LLP