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Recent California case law and new regulations stress the importance of the employer's duty to engage in the interactive process with disabled workers who require accommodation. 

Key Points:  Recent California case law and new regulations stress the importance of the employer's duty to engage in the interactive process with disabled workers who require accommodation.  Now more than ever, it is important for employers to review their current policies and procedures to ensure compliance with California's broader disability protections.     

• Employers May Have to Extend Pregnancy Disability Leave Beyond Four Months: In a recent decision, the Court of Appeal held that an additional leave of absence beyond the mandated four month leave may be a reasonable accommodation after an employee's pregnancy disability leave is exhausted.[1]  The employer terminated an employee when she was unable to return to work after exhausting her leave rights under California's Pregnancy Disability Leave Law (PDL) and the California Family Rights Act (CFRA).  However, even though the employer had complied with its obligations under the PDL and CFRA, it was also required to engage in an interactive process with the employee to determine whether an additional leave of absence could have been provided under California's Fair Employment and Housing Act (FEHA).   This ruling highlights the principle that employers should not have "maximum leave" policies in California.
• California's New Disability Regulations Stress the Employer's Duty to Engage in the Interactive Process: California's new disability regulations that took effect on January 1, 2013 significantly expand protections for disabled workers.  The regulations provide much needed guidance regarding the employers' duty to engage in the interactive process.  Specifically, the employer is required to start the interactive process in the following situations:

1. an employee or applicant with a known disability requests an accommodation;
2. the employer becomes aware of the need for an accommodation by a third party or by observation; and
3. when an employee with a disability exhausts leave under other laws.

Practical Impact:  Employers should review their current policies and procedures to ensure compliance with California's broader disability protections and, if necessary, provide additional training to human resources personnel and managers to ensure they are prepared to engage in an interactive process when needed.  Keep in mind that while employers may require medical documentation confirming the existence of a disability, employers are prohibited from inquiring about the underlying medical cause of the disability.     

If you have any questions regarding this Alert or if you would like to discuss your policy or training needs, please contact the FordHarrison attorney with whom you usually work or the author of this Alert, Michelle B. Abidoye, mabidoye@fordharrison.com, who is an attorney in our Los Angeles office.