Disability Discrimination – The ‘Good Faith Interactive Process’

An employee notifies her boss about a severe wrist injury she suffered while playing volleyball. The employer notices an employee walking with a noticeable limp, which she never had before. What must an employer do in these situations to assist, or “accommodate,” the employee? In this post, I discuss the two most critical steps an employer must take once they learn of an employee’s disability: engaging in a “timely, good faith” interactive process with the employee and providing her with areasonable accommodation. A prompt and appropriate response by the employer will boost employee morale and reduce the risk of future injuries to the employee.

Only certain types of “employers” are required to meet with and accommodate disabled employees

The Good Faith Interactive Process – When and how

The California Fair Employment and Housing Act (FEHA) and the federal Americans with Disability Act (ADA) prohibit disability discrimination by private employers. And under both laws, an employer is required (1) to promptly meet with an employee suffering from a disability to discuss and select an appropriate disability accommodation, this is process referred to as the “good faith interactive process,” and (2) to make a reasonable disability accommodation for that employee, so long as the accommodation does not cause the employer “undue hardship.” It is important to note that these requirements apply only to those persons or entities considered to be “employers” under the law. Under the FEHA, an employer is a person or entity employing five or more people and under the ADA, an employer is a person or entity employing 15 or more people. So, if a company employs less than five people, it is not subject to the requirements for providing disability accommodations – though it may be a good business decision to adhere to the rules anyway.

An Employee who is Disabled, as Defined by the Law, and Otherwise Qualified is Entitled yo Reasonable Accommodation for the Disability

An employer that is subject to the FEHA or the ADA, or both, must meet with and accommodate disabled employees. Though, employees and employer mistakenly believe that any employee injury or ailment constitutes a disability. A common cold, minor cuts, or sprains will almost never be considered a “disability.” Instead, for a physical or mental condition to qualify as a “disability,” it must limit (or in the case of the ADA, “substantially limit”) the employee’s ability to participate in major life activities, such as walking, breathing, or performing manual tasks. Where the employee does not have a “disability,” she has no right to a reasonable accommodation. Further, it is not unlawful for an employer to fire an employee if the employee cannot perform her essential job dutieseven with a reasonable accommodation. Nor does an employer have to engage in the “good faith interactive process” or accommodate a disabled employee if it never perceives the employee’s disability or if the employee never notifies the employer of the disability, such notification may sometimes require providing a doctor’s note to the manager or human resources department.

Thus, employers must follow the two-step process outlined above as soon as they learn of an employee’s disability – i.e., promptly meet with the disabled employee to discuss and select an appropriate accommodation and reasonably accommodate the employee and, specifically, her disability. Failing to engage in a “timely, good faith interactive process” or failing to provide a reasonable accommodation can serve as grounds for disability discrimination and harassment claims, subjecting the employer to additional, preventable liability.

If you are an employee who has experienced discrimination from an employer on account of your disability read our page on Workplace Discrimination – Disability Discrimination

YASH LAW GROUP has extensive experience handling disability claims under the FEHA and the ADA. Whether you are an employee or employer in Orange County, San Bernardino County, or Los Angeles County, please feel free to contact us.