What is the interactive process under Fair Employment Housing Act (FEHA)? And how must it be conducted?

For disabled employees. the interactive process under FEHA is supposed to ensure a meaningful dialogue between employers and disabled employees to identify effective reasonable accommodations. Government Code Section 12940(n) makes failure to engage in this process a separate unlawful employment practice. Below is some information concerning the employer’s duty to engage in the interactive process.   

It’s the Employer’s Obligations! Employers must engage in a “timely, good faith interactive process” in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. Employers cannot delay or approach the process superficially without risking liability. 

FEHA regulations specify that employers must initiate the interactive process in several situations: when an employee or applicant with a known disability requests reasonable accommodation; when the employer becomes aware of the need for accommodation through a third party or by observation; or when the employer becomes aware of the possible need for accommodation because the disabled employee has exhausted leave under applicable statutes and further accommodation is necessary.  

The Employee’s Responsibilities: While employers bear primary responsibility for initiating and maintaining the interactive process, employees have corresponding obligations. The employee must “cooperate in good faith with the employer” by providing “reasonable medical documentation” when the disability or need for accommodation is not obvious. Typically, employees must provide employers with their restrictions that must be met to accommodate the employee.  

The interactive process contemplates that employees and employers will communicate directly with each other, rather than through third parties, to exchange information about job skills and job openings. However, such direct communications, while preferred, are not required, and unusual circumstances may justify requiring employer to communicate through the employee’s attorney.  

Medical information and records obtained as part of the interactive process must be maintained separate from the employee’s personnel file and kept confidential, except that supervisors may be informed of restrictions on disabled individuals’ duties and required accommodations, and first aid and safety personnel may be informed that the disabled person’s condition might require emergency treatment.  

Independent Cause of Action: A critical aspect of FEHA’s interactive process requirement is that failure to engage constitutes an independent violation, separate from failure to accommodate claims. The Legislature has made the failure to engage in the interactive process a separate cause of action under Government Code Section 12940(n). This means employers can face liability even if no accommodation was ultimately possible, emphasizing the process’s intrinsic value. 

Courts are divided on whether employer liability for failing to engage in the interactive process depends on showing that a reasonable accommodation was available. Some cases hold that failure to engage in good faith interactive process is unlawful only if reasonable accommodation was possible, requiring employees to identify an accommodation that the process should have produced. However, other cases hold that FEHA “allows an independent cause of action for employees whose employers fail to engage in the interactive process,” so employer liability does not depend on showing a reasonable accommodation was possible.  

The interactive process serves multiple functions: it promotes mutual understanding between parties, helps avoid litigation, and ensures that accommodation decisions are based on complete information rather than assumptions. The process recognizes that accommodation is an individualized inquiry requiring dialogue between the person who knows their limitations best (the employee) and the person who knows the job requirements and available alternatives best (the employer).