Importance of the Interactive Process in Accommodating Employees with DisabilitiesWinter 2009 – Newsletters California Update - Employment Law
The recent California Court of Appeals decision in Nadaf-Rahrov v. Neiman Marcus Group highlights the importance of employers engaging in a thorough interactive process when dealing with injured or disabled employees. The employee, who went out on medical leave, was a fitter at a large department store. The employee's physician said that she was unable to perform work of any kind. After approximately 10 weeks of medical leave, the employee informed her employer that she could not return to her original position and requested reassignment. The employee's doctor also recommended reassignment. The employer determined that until the employee's physician removed the restriction that the employee could not perform work of any kind, no further discussion was necessary, and that the employee could contact the employer once she was returned to work.
After extending her leave several times and exhausting her sick and vacation leave, the employee was terminated. A California appellate court determined that the employer did not sufficiently engage in the interactive process.
The appellate court stated that an employer cannot simply conclude, without a thorough investigation, that no suitable, alternative job positions are available and, therefore, that the interactive process would have been futile. An employer has a responsibility to share information about available jobs with the employee once the employee has provided medical restrictions. An employer should also determine whether an employee is willing to relocate, and may have to consider vacant positions in other offices and geographic locations.
Additionally, if an employer "could have anticipated" a future job opening, it may be a reasonable accommodation for an employer to extend an employee's leave of absence until that position becomes available. Further, an employer's requirement that the employee's doctor provides a medical release to return to work before continuing the interactive process may be unreasonable because the employee's doctor might need to know the specifics of an alternative position in order to determine whether the employee can return to work.
Consequently, employers who have disabled employees attempting to return to work should engage in a thorough interactive process with their employees and document all efforts in order to avoid potential liability. Even if no accommodation appears to be available, failure to engage in this interactive process can be a separate violation of California law.