This post was authored by Matthew Nakano.

On July 11, 2017, Liebert Cassidy Whitmore’s Jennifer Rosner partnered with Department of Fair Employment and Housing (“DFEH”) Assistant Chief Counsel Paula Pearlman to present a seminar on “How to Avoid Claims of Disability Discrimination: The Road to Reasonable Accommodation.”  This seminar focused on navigating the challenges of addressing an employee’s disability when it intersects with performance issues and/or conduct that normally results in discipline.  This is an especially tricky area of the law full of pitfalls, where employers easily and sometimes unknowingly create liability.  Throughout the seminar, Ms. Pearlman shared unique and valuable insight regarding cases that the DFEH recently prosecuted, reinforcing the following key lessons for addressing accommodations and the interactive process:

Recognize Triggers to Engage in the Interactive Process

Under the federal Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”), an employer has a duty to engage in the interactive process once the need for an accommodation arises either by the employee’s request or by the employer’s knowledge of the employee’s disability. As a result, employers must recognize when this duty is triggered since employees often do not directly state they need an accommodation.

Triggers come in many forms, but some of the key triggers that should prompt further analysis by the employer to determine when to initiate the interactive process are:

• Medical information: doctor’s notes are often the most obvious trigger, especially when it contains restrictions (e.g., limits on lifting, sitting, standing, hours of work, etc.), or when an employee exhausts leave under workers’ compensation or a protected leave such as the FMLA/CFRA and restrictions are placed on their return to work or are medically unable to return to work.
• Employee’s actions: this may include sudden performance issues after a history of satisfactory performance, outbursts or altercations in the workplace, or noticeable physical pain or ailments that are affecting performance.
• Employee’s statements: an employee may directly request an accommodation (verbally or in writing), or may make statements indirectly indicating they may need an accommodation (e.g., “I’m having trouble getting to work on time because of my medical treatment.”).

Follow Through and Engage in the Interactive Process

Once an employer identifies that an employee may have a disability, it is equally important that the employer follow through and engage in the interactive process with the employee to determine what, if any, reasonable accommodations the employee may need and that the employer can provide.  Inaction by the employer is the easiest way to create liability for a claim of disability discrimination.

The interactive process allows the employer and employee to exchange information to identify potential accommodations based on the employee’s functional limitations.  Employers are encouraged to remain flexible during this process and to think of creative accommodation solutions.  While both the employee and employer may suggest potential accommodations, it is ultimately the employer’s responsibility to determine what accommodations it will provide.  Employers should be wary of blanket practices of denying certain types of accommodation requests and assess the reasonableness of an accommodation on a case-by-case basis.

Also key to a successful interactive process is for both the employer and employee to maintain open lines of communication.  Employers should document every interactive process meeting and send a written summary of the meeting to the employee, including any determinations that the employer made regarding accommodations it will provide.  Employers should also consider explaining why any accommodations that were discussed are not reasonable, or would create an undue hardship on the employer.  Written documentation will not only help to avoid any misunderstanding of what accommodations are being provided, but also create a record in case there is a future dispute regarding the accommodations considered.

It is also important for employers to remember that communication over accommodations does not end once the employer initially implements the reasonable accommodations.  Additional communication between employer and employee may be required to ensure that the accommodations are effective, and if not, engage in further interactive process to fine-tune the accommodations or discuss additional or alternative accommodations.  Also any changes in the employee’s medical condition may require additional interactive process meetings to determine whether any changes to existing accommodations may be required.

By keeping these important lessons in mind, employers will be able to more effectively identify when to initiate the interactive process and address accommodation issues, which will in turn help the employer avoid claims of disability discrimination.