Under the federal Americans with Disabilities Act (ADA) and California law, employers are required to engage in an “interactive process” with disabled employees who need accommodation to determine which accommodations are both feasible for the employer and helpful to the employee. The 9th Circuit Court of Appeals, which covers California, recently found that employers must engage in the interactive process only with employees who are legally disabled. To avoid potential liability, though, employers should continue to take this important obligation seriously.

The Interactive Process

The interactive process is one of the steps employers must take in providing disabled employees with a reasonable accommodation, if one is possible. After learning of an employee’s disability and need for accommodation, an employer must work with the employee to determine which accommodations are reasonable and will address the employee’s limitations.

Engaging in the interactive process is an obligation and must be undertaken even if it is ultimately determined that no reasonable accommodation is possible. Generally, failure to engage in the interactive process is itself a violation of both state and federal law.

Process Triggered Only by Disability

“Bianca” worked for the County Assessor’s Office in Pima, Arizona. She suffered from temporomandibular disorder (TMD), which affects the joints in the jaw. For years, Bianca worked in the mobile home section of the assessor’s office. After receiving complaints about Bianca’s work conduct that he believed negatively affected the section’s morale, the county assessor reassigned Bianca to the public service section.

Evidence suggested that the public service section could be stressful and that Bianca’s TMD was aggravated by stress. Bianca requested a transfer out of the public service section as a reasonable accommodation under the ADA, but her request was denied. Bianca then sued, alleging that the county had discriminated against her by refusing to engage in the interactive process after she had requested a reasonable accommodation. The federal district court dismissed her claims, and Bianca appealed.

The 9th Circuit noted that an employee must have a “disability” within the meaning of the ADA to be entitled to the interactive process. Bianca claimed that she has “a physical or mental impairment that substantially limits one or more … major life activities” and therefore is qualified as disabled. Because she did not present evidence that her TMD substantially limits her in speaking, eating, seeing, sleeping, or thinking and concentrating, though, the 9th Circuit affirmed the district court’s dismissal.

Be Safe Rather than Sorry

Despite the court’s ruling, employers should exercise caution before deciding not to engage an employee who has requested or obviously needs an accommodation in the interactive process. As noted above, failure to engage in the interactive process can itself be the basis for finding that an employer violated state and federal disability laws. If it is later established that the employee in fact is disabled, the failure to discuss possible accommodations with the employee will make strong evidence that no accommodation was provided or that discrimination occurred.

An employer that doubts whether an employee legally qualifies as disabled is wise to nonetheless undertake the interactive process, working with the employee and his or her physician to clarify the employee’s limitations. Employers should notify the employee that the interactive process is being engaged in and that any accommodations discussed or implemented are subject to a final determination that the employee qualifies for accommodation under the ADA and California law. Becerril v. Pima County Assessor’s Office, 9th Circuit Court of Appeals, No. 08-17070 (2009).

Practice Tip

The interactive process provides a method for employers to work with disabled employees and their physicians to determine which accommodations are necessary as well as which accommodations that an employee requests are not medically justified.