Employer Support - Interactive Process Facilitation

Our experienced lawyers and consultants help your organization conduct the interactive process, as required under the Fair Employment & Housing Act. This process is required for employees with both occupational and non-occupational disabilities.

We perform these services in conjunction with your organization’s human resources professionals or management representatives. Depending on your individual needs, we will take the lead on your first interactive process and then train your internal staff to conduct the process as your compliance programs go forward.

  • Step 1 : Document Review and Analysis
  • The first step is to obtain and review all relevant documentation. This includes the employee's job description, data from the medical records that is lawful for us to review at this stage, including modifications and restrictions on range of motion or other physical activities. I also requested the employee's original job application, so that we can evaluate whether there are any other jobs within the company that she may be qualified for by education, training or experience (this is often a "rule out" step). Finally, I requested information on safety policies that govern the packer's job. Review of these documents is necessary to fully document, in accordance with FEHA requirements, that all potential reasonable accommodations have been considered. I wouldn't anticipate spending more than an hour on this task.

  • Step 2 : Identify essential job functions.
  • FEHA provides stringent guidelines, describing an essential function as one that is the reason the job exists, one only a limited number of employees can perform or one that a specialized person is hired to perform. [California Government Code 12926 (f)]. Evidence a court will consider when determining the essential functions of a job include:

  • Step 3 : Interviews with Relevant Individuals
  • We will interview the employee's supervisor to determine what modifications to her job duties, if any, might be an appropriate reasonable accommodation. This discussion would include how job tasks could/could not be reassigned to others. We would also address specific safety policies that may come into play that would preclude a reasonable accommodation or create an undue hardship for the company. In some situations, it will be necessary to speak also with a manager or safety coordinator.

  • Step 4 : Interaction with the Employee
  • This is the process that is required by FEHA and the Americans with Disabilities Act. This "meet and confer" process involves a face-to-face discussion with the employee about details that relate to physical or other limitations, including what she can and cannot do in relation to work activities. In our experience, it is critical that we focus on the job requirements and not the individual's condition or disability. Many employees have won FEHA or ADA lawsuits for discrimination when employers, under the guise of considering accommodations, actually focus on the employee's condition, diagnosis or prognosis; rather than on the job duties and the employee's ability to perform them. The language we use, both in the discussion and the documentation, is important in any later defense to a discrimination lawsuit. I'm sure your labor counsel will agree, as they would likely be defending any claim before the DFEH or in a jury trial.

  • Step 5 : Evaluate Possible Accommodations
  • This is a determination that the employer must make, and our role will be simply to facilitate the discussion of potential alternative assignments, modified duty or other assignments that might serve as a reasonable accommodation. This is a two-fold determination; first, is there any accommodation that will allow the employee to perform the essential functions of his or her job, and second whether the "workable" accommodations are reasonable or constitute an undue hardship in accordance with current legal standards.

    As part of this evaluation, your organization will need to determine how eliminating functions the employee cannot perform would affect your business; both economic impact and workplace disruption, including effect on other employees who will have to do tasks the employee can't do. This is important for evaluating and documenting reasonable accommodations vs. undue hardship to support the company's decision.

    Generally, a "reasonable accommodation" may include any of the following:

    A particular accommodation is not required if it causes undue hardship to the employer, comparing its nature and cost against the size and solvency of the employer and the type of operation. Nor is an accommodation required if the employee would pose a direct threat to the safety of himself or others with the accommodation.

    You will need to determine how eliminating functions the employee cannot perform would affect the company; both economic impact and workplace disruption, including effect on other employees who will have to do tasks the employee can't do. With all that information available, you will then need to consider whether the employee could perform his job if non-essential functions were eliminated and will facilitate the interactive discussion on the employee about this issue.

    Following this discussion, our experienced legal professionals, consultants and return to work specialists will assist in determining whether you need to request further verification from her physician if necessary, solicit suggestions about what accommodations might enable the employee to perform the essential functions of her job.

  • Step 6 : Documentation
  • Proper documentation is critical throughout the entire process. This includes when the employee requested an accommodation, every way the employee says he is and is not limited, all efforts to determine possible accommodations, all communications with the employee and all aspects of your company policy enforcement. Our role will be to assist your HR professionals and/or leaders in developing the appropriate documentation.