Top 5 Missteps California Employers Make in Disability Management and the Interactive Process

Most California employers know they must accommodate employees with disabilities. Fewer appreciate that the process of getting there carries its own liability. Under the Fair Employment and Housing Act (FEHA), failing to engage in a timely, good-faith interactive process is a separate violation from failing to accommodate. And, those failures can be evidence in an underlying discrimination case.

Interactive process failures are a leading source of FEHA exposure, and most stem not from bad intent but from predictable breakdowns or missed steps. Here are five of the most common.

1. Waiting for the "Magic Words"

Employees rarely announce, "I am requesting a reasonable accommodation." They hand a supervisor a doctor's note, mention a back injury, or have more intangible struggles associated with mental health disabilities. The duty arises when the employee asks, when the employer otherwise becomes aware of a possible need, including at the point where otherwise protected leave is exhausted.

The fix: Train supervisors to recognize these signals and route them to HR the same day. A manager who "didn't think it was a formal request" is a familiar witness in disability discrimination cases. 

2. Treating the Process as a Single Meeting

Many employers hold one meeting, implement one accommodation (or deny the accommodation entirely), and close the file. But the interactive process is ongoing. If restrictions change, an accommodation stops working, or the employee asks again, the obligation renews. A good-faith effort at the outset does not excuse later silence.

A variation on this misstep is where an employer is making decisions regarding accommodations (or lack thereof available) in a silo, without seeking input from the employee regarding other accommodations that may be available, whether they agree with the restrictions in place, or the job duties at issue as the employer understands them. The process must be interactive, and it requires a back-and-forth effort on behalf of both parties.

The fix: Create a process to follow internally, starting with a meeting with the employee. Document accordingly – more on that below. Calendar check-ins after any accommodation is implemented. Treat a new doctor's note, a complaint, or a performance issue tied to the condition as a trigger to reopen the dialogue, and document each follow-up.

3. Relying on "100% Healed" Policies and Stale Job Descriptions

Requiring a full medical release before an employee returns to work replaces the individualized assessment FEHA requires and is unlawful. Outdated job descriptions create a related problem: a description listing duties no one has performed in years carries little weight in deciding what job functions are truly essential. Remember, an employee must be able to perform the essential job functions of the position, with or without accommodation. Employers must use caution in hanging their hat on inability to accommodate the performance of job functions which are not essential.

The fix: Audit return-to-work policies and update job descriptions before a dispute arises. Job descriptions should include whether in-office work is essential and at what percentage of the time and should include physical requirements. Then compare each actual restriction against the job's actual duties before making a decision.

4. Considering Too Few Options

Employers often weigh only modified duties, overlooking two important alternatives. The first is leave. A finite additional leave can be a reasonable accommodation, even after CFRA or FMLA leave runs out, though indefinite leave is not required. Automatic termination at the end of protected leave is a classic mistake. The second is reassignment to a vacant position the employee can perform – temporarily or permanently. Permanent reassignments should result after a collaborative alternative job search and be used as a last attempt to accommodate. Employers should affirmatively identify alternative jobs which are available and for which the employee is qualified, rather than simply directing the employee to conduct their own search.

There are limits to the employer’s obligations. Employers need not create a new position or convert temporary light duty into a permanent job.

The fix: Use a standard checklist so every option is considered and the reason for rejecting any of them is recorded. This process and documentation becomes the cornerstone of a defensible adverse employment decision.

5. Poor Documentation and Communication

In litigation, the key question is often who caused the process to break down, and the paper trail usually answers it. Employers without notes of meetings, options considered, and reasons for decisions struggle to prove good faith. Unanswered emails and slow responses can look like bad faith on their own, while documented employee non-participation is a meaningful defense.

Two related pitfalls deserve attention. Employers may request reasonable medical documentation of limitations and the need for accommodation, but generally not a diagnosis or complete records. And untrained supervisors should never make accommodation decisions alone.

The fix: Involve a trained HR professional, use standardized forms, send a written summary to the employee after each meeting, and set internal response-time benchmarks.

The Bottom Line

A defensible interactive process is less about finding the perfect accommodation than about showing a genuine, documented effort to find one. Before closing any accommodation matter, employers should be able to confirm that they:

• Recognized the trigger promptly.
• Met with the employee and documented the discussion.
• Assessed actual restrictions against actual job duties.
• Considered every option, including leave, reassignment, and an alternative job search.
• Followed up and reopened the process when circumstances changed.

When a situation is unclear, involve counsel early. A few hours spent on process now can prevent years of litigation later. The attorneys at Duggan McHugh are skilled in advising employers of every size on how to navigate these sticky issues so that employers can get it right.