Know Your Rights: The Interactive Process

Maria Gonzalez, a Nursing Assistant, exercised her right to union representation during her interactive process with management.

Maria Gonzalez, a Nursing Assistant, exercised her right to union representation during her interactive process with management.

“Interactive process” is probably not a term you have heard before, unless you’ve had to request a reasonable accommodation in the workplace due to a medical condition. If you are ever disabled, your right to an accommodation is set forth by two laws: the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).

Once an employer learns that a worker has a disability, both laws require that the employer engage the worker in a process to communicate and understand the nature of any employment limitations, and explore possible accommodations. This is known as the “interactive process.”

Nursing Assistant Maria Gonzalez recently found herself in this situation after she was injured in the workplace. A recent decision by the Public Employment Relations Board (PERB Decision No. 2409-C) sets forth that public employees have the right to request union representation in an interactive process meeting to discuss accommodations that might allow the employee to perform the essential functions of a job. Maria exercised her right to union representation during her interactive process with management.

The basic rule is that an employer must engage in a timely, good faith interactive process with the worker to determine effective reasonable accommodations, if any, in response to a request for a reasonable accommodation by a worker with a known medical condition. Generally, it’s the worker’s responsibility to initiate the interactive process. An employer may ask for documentation in support of a requested accommodation. However, the employer has the discretion to choose between effective accommodations. If the employer asserts that a requested accommodation is not possible, the employer must prove that the accommodation would cause an “undue hardship to its operation.” (Cal. Gov’t Code § 12940(m))

Although unions now have the right to represent public employees in the interactive process, the California Department of Fair Employment & Housing is the regulatory agency that enforces your individual right to a workplace accommodation if you are ever injured or disabled.

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