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Let your good faith effort shine!

Our last article provided guidance for employers on navigating through the decision about what constitutes “reasonable” when evaluating accommodations for employees or applicants with disabilities. In this article, I want to talk about the importance of a genuinely “good faith” interactive process.

We know that State disability law in California under the Fair Employment and Housing Act (FEHA) requires that employers engage in the interactive process when evaluating requests for reasonable accommodations. According to the Department of Fair Employment and Housing, this must be a “good faith” effort which they define as the employer being able to “point to cooperative behavior that promotes the identification of an appropriate accommodation” or in other words – show that you really did try.

Too often employers are all but immobilized by fear when requests for accommodations are made – fear of asking for information they are not allowed to have, fear of committing to something the organization simply cannot support, fear of somehow getting it all wrong in the process, etc. etc. When acting from this place of fear, I often see employers limit their own ability to see the possible solutions that might exist.

Adopting a simple, step-by- step approach to the process will help to alleviate the fears, open up the creative thought process, and likely lead to more positive outcomes and less risk of legal complications.

First, remember that the interactive process is meant to be an exchange of information, so do not wait to start the process until you have all your “ducks in a row”. The process allows for open lines of communication between employer and employee about what the need for accommodation is, what the parameters are in terms of successfully performing the job, and how to identify what accommodations would be effective, reasonable and feasible solutions.

And do not be afraid to brainstorm. Putting ideas on the table – even far-reaching ones – will show your good faith efforts and willingness to find those solutions. The interactive process will allow you to evaluate those options, and focus ultimately on those that, in the end, show promise as being effective. When in doubt, you can consider providing the accommodation on a “trial” basis so that you can more fully evaluate the accommodation and its ability to support the employee in performing the job.

In the end, employers who demonstrate an awareness of their obligations under the law, as well as a willingness to engage with the employee in an effort to identify reasonable accommodations will reap the benefits of these “good faith” efforts.

For more information on how to successfully navigate through the “interactive process” demonstrating your good faith efforts, please join us for our training on 10/24/17.

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