Monday, May 6, 2013

When the Obligation to Engage in the Interactive Process Arises

California recently amended its regulations pertaining to employment discrimination.  The regulations are worth reading.  Just click here.  One of the points that employers must realize is when the obligation to engage in the interactive process arises. 

Section 7294(b) provides three situations when the obligation arises. 
  1. When the employee or applicant requests an accommodation.
  2. When the employer becomes aware of the need for an accommodation.  This awareness can come through observation or from a third party. 
  3. When the the employee with a disability has exhausted leave under the California Workers’ Compensation Act (yeah right, is there an expiration date for work comp leaves???), CFRA or the FMLA, or another federal, state, employer-provided leave provision and yet the employee or his/her health care provider indicates that further leave is necessary before the employee can perform the essential functions of the job. 
This third situation requires employers to determine whether an additional leave would allow the employee who has exhausted his/her leave entitlement to perform the job.  This is a very frustrating obligation imposed by the law.  CFRA and FMLA both provide for 12 weeks of leave.  A PDL leave of absence is up to four months (or 17.3 weeks -- I know, what is .3 of a week?).  How much additional time must be provided?  I think the answer is -- a reasonable amount that does not cause an undue hardship.  (Not much help is it?) 

What the regulations also make clear is that an indefinite leave of absence is not reasonable.  (Section 7293.9(c).)  Indefinite leave can be when the health care provider says, "I have no clue when (s)he can return to the workplace."  More frequently, it is when the employee continues to provide you with notes indicating the employee can return in 30 days.  Before the 30 days expire, you receive another note.  This often continues. 

If this happens, consider telling the employee and his/her health care provider that the successive notes constitute an indefinite leave of absence, and that a more accurate prognosis is required.  That usually gets some action from the employee to return quickly or for the health care provider to acknowledge that a return is not imminent. 

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