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Avoiding Common Mishaps During the Reasonable Accommodation Process By Nate Kowalski, Eric Riss, and Angelo Villarreal, Atkinson, Andelson, Loya, Ruud & Romo
Common Mishap #2: Failing to Fully Engage in the Interactive Process
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tate and federal law dictate that employers may not discriminate against employees on the basis of their disabilities. This mandate requires cities, counties, housing authorities, transit agencies, water districts, and other special districts (“public agencies”) to timely engage in the interactive process in good faith, and provide reasonable workplace accommodations to enable disabled employees to fulfill the essential functions of their position. Mistakes made during the interactive process are one primary cause for disability discrimination claims. This article will address some common mishaps that arise during the interactive and reasonable accommodation process that public agencies should avoid.
Common Mishap #1: Failing to Recognize a Request for Accommodation First, public agencies may fail to recognize a request for accommodation. There are no “magic words” that an employee must use to state a valid accommodation request. A public agency will be put on notice of a request for accommodation when it (a) knows the 10
employee has a disability; (b) knows, or has reason to know, the employee is experiencing workplace problems because of a disability; or (c) knows, or has reason to know, the disability prevents the employee from requesting a reasonable accommodation. One published decision illustrates this issue.1 A pharmacy assistant who suffered from cerebral palsy was hired to work in a pharmacy. During the hiring stage, the employer was aware of the pharmacy assistant’s disability. Shortly after his hiring, the employee was transferred to other roles within the department because his supervisor was unhappy with his performance. The employee subsequently quit out of frustration with his transfer. Although the employee did not request accommodations for his disability, the employer was found to have failed to provide accommodations, because the employer was aware that the employee had obvious speech, visual, and walking impediments. Thus, public agencies should remain mindful of legally protected accommodation requests, whether or not the employee personally submits a request or takes explicit action to notify the employer about a disability.
Public agencies may also overlook the obligation to engage in the interactive process. Once a public agency has learned about an employee’s disability and accommodation request through a third party or observation, it must engage in the interactive process. Another published decision demonstrates how this mistake can arise.2 An employee had been initially certified for leave based on a psychiatric condition. When that leave expired, the employee submitted a form from his chiropractor stating he was suffering from a back condition and needed leave from work. The employer attempted to contact the employee directly, but failed to reach him. Instead, the employer decided to terminate his employment after considering the chiropractor’s form to be insufficient to request further leave and excuse his absence. The court found that the employer failed to engage in the interactive process by not adequately communicating with the employee about his condition and need for accommodation. While the employer argued that it was unaware that the employee had a disability, the court found the form sufficient to put the employer on notice of his disability. Once an employee with a known disability requests an accommodation, a public agency must take affirmative steps to engage in the interactive process. Public agencies should refrain from reaching premature conclusions, premise accommodation discussions in the information provided by an employee, and seek clarification when needed. California Special Districts • Jan-Feb 2021
