The Interactive Process A review of the Six Steps of the Interactive Process and best practice highl

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The Interactive Process A review of the Six
Steps of the Interactive Process and best
practice highlights

• Roberta Etcheverry, CPDM
• Chief Executive Officer
• DMG Diversified Management Group
• 1855 Gateway Blvd., 760, Concord, California
  94520
• 800-746-4364 x 105
• RobertaE_at_DMG-at-Work.com

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The Law

• ADA vs. FEHA
• Both require the employer to consider
  accommodations for employees and applicants with
  disabilities
• FEHA (not the only differences)
• Broader definition of criteria for disability
• REQUIREMENT to conduct an Interactive Process
• Will focus on FEHA as more stringent

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What is Required?

• FEHA generally requires two things
• (related to employer obligations and
  employees/applicants with disabilities)
• Employers must provide reasonable accommodation
  for those applicants and employees who, because
  of their disability, are unable to perform the
  essential functions of the job.
• Employers must engage in a timely, good faith
  interactive process with applicants or employees
  in need of reasonable accommodation.

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What is the Interactive Process?

• State law incorporates guidelines developed by
  EEOC in defining an interactive process between
  the employer and employee
• The guidelines include
• Consulting with the individual to ascertain the
  precise job-related limitations and how they
  could be overcome with a reasonable
  accommodation.
• Identifying potential accommodations and
  assessing their effectiveness.

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What is good faith timely?

• Federal courts have given an interpretation of
  good faith
• ER/EE must communicate directly with each other
  to determine essential information needed
• Neither party can delay or interfere with the
  process
• The employer should be able to point to
  cooperative behavior that promotes the
  identification of an appropriate accommodation
• Act quickly and avoid unnecessary delays
• at least START the process ASAP

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What triggers the process?

• An oral or written request for an accommodation
  by an employee (does not need to refer to ADA,
  FEHA or use the phrase reasonable
  accommodation)
• My wheelchair does not fit under my desk
• I have problems getting to work at my start time
  
• because of medical treatments I am undergoing
• I need time off to get treatment for a back
  problem
• (continued)

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What triggers the process?

• A request is made or the employer otherwise
  learns of a request for accommodation from a
  third party (spouse, friend, doctor)
• Employees wife calls telling the employer that
  employee had a medical emergency due to MS,
  needed to be hospitalized, and therefore needs
  time off
• Employee given restrictions related to W.Comp
  claim
• Employer observes employee with an obvious
  disability having difficulty performing the
  essential functions of the job.

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The Interactive Process

• Remember it is harder to do the wrong thing
  when you are trying to do the right thing

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Six Steps of the Interactive Process

• A highlight of best practices
• STEP 1 Analyze the job and essential
• functions

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Essential Functions

• Who decides? How??

• Help from the EEOC

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Essential Functions Identification

• Taking the criteria and applying them to the
  specific circumstances.
• Beware of canned job descriptions OK as a
  starting point, but need to make sure they fit
  your organization.
• ONet (Occupational Information Network) as a
  resource
• http//online.onetcenter.org/

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Six Steps of the Interactive Process

• STEP 2 Identify job-related limitations
• If the disability is not obvious, can request
  that the employee complete a Request for
  Reasonable Accommodation that includes providing
  medical documentation of the disability and need
  for accommodation can also request clarification
  on restrictions related to the disability
• Do not delay the start of the process while
  waiting for information
• Do not rely entirely on the doctor for
  accommodation ideas EMPLOYER is the decision
  maker, not the doctor when it comes to
  accommodations

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Six Steps of the Interactive Process

• STEP 3 Identify possible accommodations
• The employees involvement is key
• Do not be afraid to brainstorm
• What to do when the EE will not interact
• JAN as a resource
• (www. JAN.wvu.edu)

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Six Steps of the Interactive Process

• STEP 4 Assess the feasibility of accommodations
• Getting supervisors to buy in
• Focus on business necessity/operations
• Do not need to remove Essential Functions
• Undue hardship to business operations
• Direct threat employee would create imminent
  and substantial danger to self or others by
  performing the job

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Six Steps of the Interactive Process

• STEP 5 Implement the accommodation that
• is the most appropriate
• EE preference vs. ER constraints
• Document the offer
• Have an action plan

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Six Steps of the Interactive Process

• STEP 6 Follow up regularly
• Must go back to the drawing board if not working
• Was the action plan followed to completion?
• Does the work continue to be within the
  functional limitations?
• Is the employee successfully performing the
  essential functions?

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Key Points to Remember

• The interactive process is interactive
• The interactive process is a process (not an
  event)
• Documentation, documentation
• It is harder to do the wrong thing when you are
  trying to do the right thing

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Questions ?...
Roberta Etcheverry RobertaE_at_DMG-at-Work.com 800-7
46-4364 x 105