The Interactive Process: “I Just Need a Little Help”

Paul A. CampbellEmployment Law Blog

The Interactive Process: “I Just Need a Little Help

              If you have work limitations from your doctor you have a disability for purposes of Fair Employment and Housing Act (“FEHA”) in California.  This gives you rights to reasonable accommodation. This means adjustments to your work schedule or modifications to your job so you can work.

              Many people think work restrictions mean they can’t do their normal job.  They think they are out of luck and have to just go home and file for some sort of state aid or seek compensation from workers compensation. While that may be one option, reasonable accommodation laws are in place to help you work.

              Employers must provide you with reasonable adjustments to your work environment or schedule to help you stay on the job.  This means they have to explore these possibilities with you. This exploration is called the “interactive process.”

              The interactive process is started in several ways. If your employer sees you need accommodation, that knowledge requires them to start this process.  If you give a copy of your doctor’s note to your employer alerting them of permanent or temporary work limitations, it triggers the interactive process. If you have an ongoing disability and ask for some accommodation it can also trigger the interactive process.

              Employees need to be cautious when triggering the interactive process.  They should be prepared to suggest potential accommodations before starting the interactive process.  Being caught off guard might result in your not being prepared to present possible accommodations or your ability to discuss what the actual important duties of your position are.  This could result in your employer deciding they need to terminate you because they claim they can’t accommodate you. If this happens and you believe you could have continued working call us.

              The issue during the interactive process is always what sort of accommodations are available.  Your employer must to help you work if the accommodation is reasonable.  To determine what accommodation must be made, your job is broken down into two parts.  (1) the primary job duties (“essential job functions”) and (2) the not so important parts of your job or (“marginal tasks”).

  1. Identify your essential job duties.

              Your employer has an obligation to accommodate the essential job functions, so long as it does not create too much of a burden for them (“undue burden”).  But they can’t use your inability to do marginal tasks as the reason to terminate you. Deciding what your essential job duties are is one of the first steps to the interactive process.

  1. Identify things that can be done to help you do essential job duties.

               Your employer could identify specific tasks, part of those important job duties, that they think you cannot do.  Then together you are supposed to look for ways to overcome them. Your focus should be how you can do these with or without help. Get creative. Assistive devices, changes in the way the job is done, schedule adjustments, break or rest periods, are all potential ways to overcome this hurdle.  For example if your restriction is “no overhead work” then a ladder or step stool that brings the working level of your job down below your head is all that is required to overcome this obstacle. If there are vacant positions that you qualify for that do not violate your work limitations, those are also available accommodations that must be considered.

              Getting you back to work and keeping you on the job is the whole purpose of the interactive process. But like most laws, since it’s an obligation and can be a burden, many times employers just go through this meeting not really intending to help you back to work.  Some employers only have this meeting to avoid a disability discrimination lawsuit. Sometimes they try to say that because your condition is permanent they can’t accommodate you. This is wrong. They can only avoid accommodation if it creates an undue burden. That means it has to be unreasonably difficult to maintain without significant expense, or it must significantly impact their business operations.

  1. Do not admit you cannot do your job.

              Think about possible accommodations and present them to your employer. The online Job Accommodation Network or (“JAN”) is a great resource to help with this. They have many different scenarios and possible accommodations for many different disabilities and medical conditions on their website.

  1. Seek help. Contact Us. Our Advice is 100% Confidential.

              Call us if you think that your interactive process was not done with good intentions or if you feel like you were being pushed out of work because of your disability or work limitations.  Get help; especially if you believe you could have continued working. We can help. It is always better to get counsel from an employment attorney before this moment; especially if you believe you have been victimized by discriminatory or illegal practices. Hogie & Campbell will discuss your situation at no cost to you to help you determine whether you need to take action to protect your rights. At Hogie & Campbell we will work with you to decide if you need an employment attorney.  Call for a Free Consultation at (714) 508-6422.

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