California Employment Law Refresher: Reasonable Accommodation and Interactive Process Obligations with Focus on Remote/Hybrid Work
Both the California Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA) impose an affirmative duty on employers to make reasonable accommodations for the known disabilities of employees (including applicants) to enable them to perform the essential functions of an employment position unless doing so will create an undue hardship to the employer’s operations.
The FEHA and ADA set forth a variety of possible reasonable accommodations, including but not limited to facility/workspace modification, assistive animals, modified work schedules, and remote/hybrid work, among other options. As the California Civil Rights Department (CRD) has noted, “[r]easonable accommodations may be unique and creative because they respond to a person’s specific disability-related needs.” Although they must consider and give weight to an employee’s preferred accommodation, employers have the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier for it to provide so long as it effectively enables the employee to perform the essential functions of the job.
In order to determine the scope of the employee’s needs and possible accommodations, the employer and employee must engage in a timely and good faith interactive process. Employers must timely respond to requests for accommodation but must also initiate the interactive process, even without a direct request, when they become aware of the need for accommodation. A prior legal update summarized a recent California court opinion that clarified when employers have knowledge of an employee’s disability and potential need for accommodation for purposes of the FEHA.
The interactive process involves an exchange of information, such as the employee’s work restrictions (not diagnosis) and resources the employer may have to accommodate those restrictions, including information about modifications to an existing position and alternative vacant positions for which the employee may be qualified. If the disability and need for accommodation is not obvious, it may also include reasonable medical documentation provided by the employee. Both sides must cooperate in good faith and must provide relevant information that is available to them.
The interactive process is an ongoing obligation for both the employer and the employee and may involve multiple discussions. If an accommodation is no longer reasonable or effective, both the employer and employee must reengage in an attempt to find new solutions.
Although “work from home” or “telework” options have always been a potential area of discussion in the interactive process, the COVID-19 pandemic undoubtedly increased the number of requests for remote or hybrid work and the understanding that some positions can be performed away from traditional workspaces. It did not, however, change the respective obligations of employers and employees in the interactive process. Remote or hybrid work is simply one of multiple options that may be considered as a reasonable accommodation. In some instances, it may be appropriate; in others, it may not. The fact that it may have been an option during a global pandemic does not mean it was the most effective—or even an effective—way to perform the essential functions of every job or that it is always a reasonable accommodation. It does mean, however, that it may be an option for some positions when engaging in the interactive process and should be considered among other potential options when appropriate.
It is important that both employers and employees address the specific circumstances at issue and not engage in absolutes. In most instances, employers should not conclude, without engaging in the interactive process, that none of their positions can be performed remotely. Likewise, simply because remote work was an option for a position during the pandemic does not mean that remote or hybrid work is always a reasonable accommodation after the pandemic ended, even for the same position.
Importantly, as noted above, the interactive process is an ongoing obligation. An employer and employee may elect to try remote or hybrid work as a reasonable accommodation and later conclude that it did not effectively—or most effectively—enable the employee to perform the essential functions of the job. In that case, the employer and employee must reengage in the interactive process to discuss alternative accommodations.
So, what can an employer do if an employee requests remote or hybrid work as a reasonable accommodation? The answer is the same now as it has always been. The employer should initiate the interactive process and undertake the same steps it would follow in response to any accommodation request.
First, the employer should clarify the work restrictions (not the underlying diagnosis). This includes both the specific nature of the restrictions (e.g., inability to perform specified functions, limited hours, or increased break frequency) as well as the term of those restrictions (e.g., permanent or temporary for a specified period of time).
Next, the employer should review and discuss the job description for the employee’s current position with the employee with a focus on the essential functions of that position in relation to the employee’s restrictions. The employer and employee should discuss possible reasonable accommodations that would enable the employee to perform the position’s essential functions. If a reasonable accommodation can be made that will enable the employee to perform those functions, the employer should reasonably accommodate. If there is more than one reasonable accommodation that would accomplish this result, the employer and employee should discuss each accommodation and reach an agreement as to which will be most effective in enabling the employee to perform the essential job functions with the understanding that the employer may choose the effective accommodation that best suits its needs.
If it is determined there are no reasonable accommodations that would enable the employee to perform the essential functions of the employee’s current position, the employer and employee should discuss other vacant positions for which the employee may be qualified and whether reasonable accommodations are needed and available for those positions. This should not be limited to the employee’s current job site; if there are positions at other locations for which the employee is qualified, those positions may also be part of the discussion.
The employer and employee should go through this process until they agree upon an effective reasonable accommodation or conclude there are none available that would enable the employee to continue working, in which case they may consider a finite leave of absence. Throughout the process, the employer should document the discussions and each agreement reached and provide written confirmation to the employee.
Earlier this year, the Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM) issued guidance, entitled Frequently Asked Questions from the Federal Sector about Telework Accommodations for Disabilities, regarding telework accommodations for federal employees under the ADA and the Rehabilitation Act. Although directed toward federal agencies in response to a federal return-to-work order, and not binding when analyzing California employers’ obligations, it provides general guidance that may be helpful in considering remote or hybrid work as a reasonable accommodation.
In addition, the CRD recently published a Fact Sheet Regarding Disability Accommodations at Work, which provides information about California employers’ obligations regarding reasonable accommodations for qualified individuals with disabilities.
This legal update and any use of its information does not create an attorney-client relationship. Nothing contained on this website should be considered legal advice for any specific employer or employment situation. Consult legal counsel before taking any action as a result of information contained herein.
