In a recent California case, employers nationwide are reminded of the importance of engaging in the good faith interactive process and attempting to provide reasonable accommodation to a disabled employee. California jurors, in a special verdict, recently awarded a disabled former employee a $4.5 million verdict for violating the California Family Rights Act (CFRA) and California Fair Employment and Housing Act (FEHA) when the employer terminated the employee while she was out on CFRA leave.
In 2015, the former employee went out on medical leave (CFRA leave) for a broken arm. Shortly after going out on leave, the former employee was diagnosed with major depression and her treating physician advised her employer that she would require more time off than the 12 weeks provided under the CFRA.
Rather than engage in the interactive process with the employee to try to find a reasonable accommodation (or extend the employee’s leave), the employer terminated the employee when her 12 weeks of CFRA leave expired. The former employee filed a lawsuit against her employer claiming that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment. The employee also claimed that her employer had violated FEHA by failing to engage in the interactive process with her about her disability and by failing to provide her with reasonable accommodation.
The jury agreed with the plaintiff and awarded her the $4.5 million verdict ($546,000 for back and front pay, over $1.9 million in compensatory damages and $2.6 million in punitive damages).
Take Home for Employers
While a California case, this case highlights to all employers the importance of working with employees who require accommodation for a disability (i.e. the importance of engaging in the interactive process). This case might have been brought under California law, but there are federal laws (i.e. the Americans with Disabilities Act and Family Medical Leave Act) that impose the same requirements on employers. Under these laws, employers are required to engage in the interactive process to determine what reasonable accommodations are necessary so an employee can perform essential job functions.
The following are important steps to follow when engaging in the interactive process with an employee:
- Document!!!!! When an employee requests a leave of absence or a reasonable accommodation, document that request. Also, provide the employee an acknowledgement of the request in writing, to document that the request was received.
- Talk to the employee about the request. Sit down with the employee and discuss the request and possible accommodation(s) that the company can offer. Request additional information from the employee (or his healthcare provider) where necessary in order to determine exactly what the employee can (and cannot) do.
- Document (again)!!!!! After these conversations with the employee, send the employee a confirming memorandum summarizing your conversation, outlining accommodations discussed, and detailing any action items that both the employee and company need to perform in order to continue with the process.
- Complete the company’s action items AND follow up with the employee. Be sure to complete any action items assigned to the company in the confirming memorandum. Also, follow up with the employee to check the status of his action items. Do not assume that the employee will simply complete them, periodically touch base with the employee. And, as always, document both the company’s actions, but also the follow up conversations with the employee.
- Repeat this process. This process will need to be repeated until an accommodation is reached or a determination is made that no accommodation is possible. Remember, under the ADA (and FEHA), a leave of absence is considered a reasonable accommodation.
Remember, the interactive process is a continuing process with your disabled employees. Just because an accommodation is reached, that does not end the employer’s obligation to engage in the interactive process. Employers need to follow up with their employees periodically and verify that the selected accommodation is still working for the employee (i.e. enabling the employee to perform the essential functions of the position). If it isn’t, then the company will need to start the interactive process all over again.