California’s Fair Employment and Housing Act (“FEHA”) requires an employer to participate in what is known as the “interactive process,” when an employee needs accommodations for a disabling condition. This requirement applies to employers of 5 or more employees and is triggered by either the employee’s request or the employer becoming aware that accommodations may be needed. A medical condition that requires accommodation could be a permanent condition or an injury that will only impair ability for a short period of time.
The interactive process is designed to provide an individualized assessment of the essential functions of the job and the specific medical limitations on the individual. This allows the employer and employee to find a way for the employee to keep working with some form of accommodation, if possible. In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process.
Reasonable accommodation can include, but is not limited to, the following:
- modified job duties
- additional leave
- modified work schedule
- different work area
- mechanical or ergonomic equipment
While the interactive process is designed for employers and employees to explore and secure accommodations for an employee, it does not always result in an employee continuing to work. Sometimes an employee cannot perform the essential functions of their position regardless of what accommodations are provided. Other times the employer will argue that providing the needed accommodation would be an undue burden. In situations where your career may be on the line it is important to have a representative present.
Union employees have the right to representation during the interactive process. Under Weingarten, public sector union employees have long had the right to union representation at meetings that could lead to disciplinary action. The right to union representation at other meetings like interactive meetings, which may have no possibility of leading to disciplinary action, has not always been so clear. However, a recent ruling from the Public Employment Relations Board clarified the issue holding that union representation must also be allowed at meetings with management regarding the “interactive process”. (Sonoma County Superior Court (2017) PERB Decision No. 2532-C) The ruling clarified that interactive meetings, qualify as meetings on, “matters related to an employee’s terms and conditions of employment,” and therefore union representation must be allowed. Employees must make the request if they want to have a union representative present. Once the request is made, the request cannot be denied.