When an employee gives notice of a disability that requires an accommodation, the employer has a strict obligation to engage in a good faith, and timely, interactive process. That's a fancy way of saying that the employer has to sit down with the employee and talk, and try to figure out what the employer needs to do in order to allow the disabled employee to continue to succeed in his or her job. To determine a reasonable accommodation.
There are no magic words to trigger an employer’s obligation to engage in an interactive process. The employee does not have to say, “I want to engage in a good faith, interactive process.” As long as the employer has notice that the employee has a disability that is affecting his or her ability to perform the job that they are employed for, then the employer is required to sit down and talk with the employee to identify a reasonable accommodation.
The interactive process is supposed to be give-and-take: the employee explains what he or she can or cannot do, and what the employee thinks he or she needs in order to do the job. The employer then has an obligation to seriously consider the requests of the employee.
The employer doesn't have to do exactly what the employee requests, but they do need to talk about and consider it. For instance, the employee may say, “I need a desk that is raised by 6 inches so that the back problem I have isn't exacerbated by the height of my desk.” If the employer is not willing to do that, perhaps they would be willing to get the employee a chair that goes up and down so that the employee can adjust the chair and essentially get the same result.
If an employer refuses to sit down and talk to the employee to come up with a reasonable accommodation, then in addition to a failure to accommodate claim, the employer could have a “failure to engage in an interactive process” claim. So, sometimes an employer may not be able to accommodate the employee, but if they refuse to accommodate the employee without first talking to the employee and trying to figure out a reasonable accommodation, in other words, if they outright reject an employee's request for a need for an accommodation, then they would also be liable for failure to engage in an interactive process claim.
The two causes of action, failure to accommodate and failure to engage in an interactive, typically go hand-in-hand. Oftentimes, the reason the employer fails to accommodate the employee is because they fail to engage in an interactive process with the employee.
If you believe that your employer has failed to engage in an interactive process to identify a reasonable accommodation, it is important to speak with a labor and employment attorney right away. A labor and employment attorney can help you evaluate whether you are experiencing unlawful disability discrimination by your employer. A San Francisco and Bay Area labor and employment attorney at the Khadder Law Firm is experienced in evaluating all forms of disability discrimination claims. Contact the Khadder Law Firm today for a free consultation....
