Most California employers who employ more than 5 people—as well as most employers nationwide who employ more than 15 people—are legally required to engage in the “good faith interactive process” when an employee requests an accommodation due to a disability or pregnancy. Though the interactive process is nothing new, many employers do not understand their obligations under the law. Others view the interactive process as a "pain" or a burden and simply don't care about the legal requirements.
If you are seeking accommodations for a disability or relating to your pregnancy, here is what you need to know.
What Laws Require Employers to Engage in the Good Faith Interactive Process?
A number of laws require employers to engage in the good faith interactive process. With respect to employees with disabilities, the Americans with Disabilities Act (ADA) and state laws like the California Fair Employment and Housing Act (FEHA) and the New York State Human Rights Law (NYHRL) require employers to try to accommodate disabled employees. Accommodations may include things like:
- Modifications to existing facilities, such as installing a wheelchair ramp;
- Modifying or acquiring equipment to accommodate employees, such as buying ergonomic keyboards, standing desks, etc.;
- Modifying work schedules or permitting additional breaks to accommodate things like chronic fatigue, blood glucose testing, or ongoing doctor’s appointments;
- Providing leaves of absence longer than required by applicable leave of absence laws, such as the Family Medical Leave Act (FMLA), California Family Rights Act (CFRA), California’s Pregnancy Disability Leave Law (PDLL), or New York’s Paid Family Leave Act (PFL);
- Reassigning an employee to a different, available position, such as providing modified or light duty; or
- Adjusting examinations, training materials, or policies, such as providing a handbook in Braille or providing additional time for an examination to accommodate an employee with ADHD.
Employees with pregnancy-related temporary disabilities may also request accommodations under the federal Pregnancy Discrimination Act (PDA) and state laws like California’s Pregnancy Disability Leave Law (PDLL) or New York’s Protect Women from Pregnancy Discrimination Act. Employers must engage in the interactive process for these pregnancy-related disabilities in the same way they are required to engage in the interactive process for other types of disabilities.
Once you request any of the accommodations listed above—or any other accommodation that would allow you perform your job more effectively or less painfully—these laws require covered employers to engage in the good faith interactive process.
What is an Employer Required to Do in the Interactive Process?
Once the duty to engage in the good faith interactive process is triggered, an employer must (1) promptly meet with the employee and discuss and select appropriate disability-related accommodations and (2) provide selected accommodations so long as they don’t pose an “undue hardship” on the employer.
The interactive process is ongoing. Your employer cannot have one conversation with you, fail to engage further, and throw its hands up and say, “we tried.” That is not enough under the law. For example, if you request a transfer to a less strenuous position, the employer cannot provide you with a single position and fail to tell you about other positions that become available the following week. If you request information about modified equipment that would allow you to do your job, your employer must actually take steps to find out what equipment is available for purchase from vendors.
The specific actions an employer must take when an employee requests an accommodation vary depending on the circumstances. In general, though, your employer must actually try to accommodate you. Though not all accommodations will be workable, if there is a workable accommodation, they are expected to work with you to try to identify it.
When Do I Need a Lawyer in the Interactive Process?
The interactive process is designed to be between you and your employer. You do not need a lawyer to participate in the interactive process. However, it can be helpful to speak with a lawyer to understand your rights, although most lawyers will not represent you at this stage. We sometimes engage clients on an advisory basis just to talk them through their options and maximize their chances of obtaining accommodations. If things go wrong, then you also have an attorney lined up already, which can be helpful.
You should retain an attorney if you are being retaliated against due to your request for accommodations. Although it’s illegal, many employers will write up, cut hours, or even fire employees after they speak up and request accommodations. You should know that your request for accommodations is a “protected activity,” meaning your employer cannot retaliate against you for making the request. If this happens, you should talk to a lawyer as soon as possible to help you navigate this tricky situation.
Contact Our Experienced Disability and Pregnancy Discrimination Attorneys
Our attorneys have personal experience navigating requests for reasonable accommodations, and have many people in individual failure to accommodate and related retaliation claims. We believe that if you can continue to work, your employers should do everything they can to facilitate that. Otherwise, many people are pushed out of the workforce and the economic consequences can be devastating.
If your employer is not accommodating your disability or your pregnancy, do not hesitate to contact us today through our website or give us a call at (213) 214-3757 to see how we can help.