Under Fair Employment and Housing Act (“FEHA”), an employer’s failure “to engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations” is a violation of the statute separate from any failure to make reasonable accommodations for a qualified employee’s disability. Gov. Code §12940(n); Achal v. Gate Gourmet, Inc., 114 F.Supp.3d 781 (N.D. Cal. 2015).
Once you ask an employer for an accommodation, FEHA requires an employer to engage in an interactive process. An employer must engage in this process in good faith. “The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of identifying an accommodation that allows the employee to perform only the essential functions of the job effectively. Both the employer and employee must participate and neither has the right to obstruct the process. If the objective circumstances indicate that the employer is responsible for a breakdown in communication, the employer may be held liable. Swanson v. Morongo Unified School District, 232 Cal.App.4th 954, 972 (2014).
Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation. If the process fails, responsibility for the failure rests with the party who failed to participate in good faith. Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237, 1252 (2008)
In order to prevail on this claim, the employee bears the burden of proving that a reasonable accommodation was available during the time the interactive process should have occurred. Nadaf-Rahrov v. Neiman Marcus Group, Inc. 166 Cal.App.4th 952, 979 (2008).
Depending on the nature of the position, a reasonable accommodation could include: job restructuring, offering part-time or modified work schedules, reassigning to a vacant position, adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters and “other similar accommodations for individuals with disabilities.” Cal. Gov Code §12926, subd. (n)(2); Cal.Code Regs., tit. 2, § 7293.9, subd. (a). A reasonable accommodation can also include providing the employee accrued paid leave or additional unpaid leave for treatment.
An employee seeking a reasonable accommodation cannot, however, make an employer provide one specific accommodation if another is provided instead, so long as the alternative accommodation is just as reasonable and effective. Keep in mind, however, an employer may only choose between options that are effective in allowing you to continue working. Moreover, an employer has a continuous obligation to accommodate an employee so long as his or her disability requires it.
If you are being discriminated against because of your disability or medical condition and/or your employer is denying your request for an accommodation, we urge you to speak to an employment law attorney. California has strict deadlines for pursuing legal action.
