Must Employees Request The Interactive Process?

In a recent case (Milan v. City of Holtville 186 Cal App 4^th 1028), a California appellate court confirmed that employees must request the interactive process. The case involved Tanya Milan (Milan), who worked for the City of Holtville (City). She filed a lawsuit against the City  alleging that they failed to accommodate her disability in violation of the Fair Employment and Housing Act (FEHA). Milan had sustained a work-related injury to her neck, which required surgery to remove herniated discs and to fuse the vertebrae with a metal plate inserted into her neck.  Milan received workers’ compensation benefits for this injury.  Early on in her treatment, Milan was seen by a doctor for the City, who opined that Milan would not be able to return to work at the water treatment plant because her job required significant bending, twisting, and lifting.  The City chose to wait and see if Milan’s condition would improve, before making a final determination regarding her employmen

However, the workers’ compensation claims administrator forwarded a notice to Milan that she was deemed unable to perform her usual and customary job, and offered her rehabilitation benefits.  Milan accepted the rehabilitation benefits and did not contact anyone at the City about her plans, including her intent to return to work [1] Apparently, although she accepted the rehabilitation benefits, Milan still believed that she was employed by the City because she was receiving a regular pay check even though she had not returned to work.  However, on March 30, 2004, Milan received a letter from the City, notifying her that she had been terminated as the City did not believe she was capable of returning to work.  This letter was sent more than 18 months after the last day that Milan actually performed work for the employer.  Milan conceded that during this time, she did not contact anyone at the City about her condition or her plans to return to work. Milan subsequently filed a disability discrimination lawsuit alleging that the City failed to accommodate her disability.

In reaching its decision, the court relied on Government Code §12940 (n), which specifies that an employer is required to engage in an interactive process in response to a request by an employee for a reasonable accommodation.  The court provided an overview of  the interactive process as defined by case law, including Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App. 4^th 34), emphasizing that the interactive process “is at the heart of the [FEHA’s] process and essential to accomplishing its goals” and that it is “more a labor tool than a legal tool” used “to allow for early intervention by an employer, outside of the legal forum, for exploring reasonable accommodations for employees who are perceived to be disabled.”   The Milan court also reiterated that the importance of §12940 (n) is the requirement that the employee initiate the process, although it cautioned that an employee does not have to use any particular words to request an accommodation. Quoting from Gelfo, the court noted:

[T]he obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party.  Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith (Id. at p.62, fn.22).

The court then concluded that the facts could not support a finding that Milan met her obligations under the statute because when Milan received the notice of termination in March 2004, she was “aware she had not been at work for more than 18 months” and had not contacted the City. The court determined that although the extended absence did not create a duty for Milan to specifically request an accommodation, it “did require, at the very least, she communicate to the City that she planned to continue working at the water treatment plant.”  The court further observed that §12940 (n) does not allow an employee to:

Ignore notice from their employer which indicates that the employer believes the employee is not capable of performing his/her job; 
Remain absent from work for more than 18 months and make no attempt to communicate a desire to return to work for the employer.

Additionally, the court found that Milan’s response to the workers’ compensation claims administrator was not adequate to trigger the employer’s obligation under §12940(n), because ultimately Milan accepted rehabilitation benefits and retraining.“In this context, good faith required that Milan directly express to the City her interest in retaining her job”, in order for the employer’s obligations under the statute to be triggered.

In conclusion, the court stated that where “an employer has not received any communication from an employee over a lengthy period of time, and after the employee has been given notice of the employer’s determination the employee is not fit, an employer is not required by section 12940, subdivision (n), to initiate any discussion of accommodations.”  The court also emphasized that imposing such a duty under these circumstances would be contrary to the express terms of the statute which requires that an employee initiate the interactive process.

Importantly, from a commonsense perspective, the court emphasized that when an employee is on an extended disability or workers’ compensation leave of absence, if the employee intends on returning to work, the employee has a duty to communicate that intent to the employer, thereby initiating the interactive process under FEHA, before an employer can be deemed to have failed to engage in the interactive process. In reaching its conclusion, the Milan court specifically noted two key factors: (1) there was no communication from the employee over a lengthy period of time; (2) the employee had been notified, by the workers’ compensation administrator, that pursuant to a medical report, she was deemed incapable of performing her job.

No Communication From The Employee Over A Lengthy Period Of Time
Milan never directly communicated to the City regarding her intention or desire to return to work.  Moreover, the court found that her communications to the employer’s workers’ compensation carrier, disputing the determination that she was not able to return to her usual and customary job, were not sufficient notice of her intent to return to work. However, the court seemed to qualify this by adding that it was not adequate notice “because in the end, Milan accepted rehabilitation benefits and retraining.”  By adding this qualification, the court seems to suggest that Milan’s dispute of the determination might have been sufficient to trigger the employer’s obligations under §12940(n) if she had not accepted the rehabilitation benefits. Therefore, the court’s decision might have been different if Milan had never accepted the rehabilitation benefits, which are no longer available under workers’ compensation law. 

In terms of the specific length of time in which Milan did not communicate with her employer, the court found that 18 months was excessively lengthy.  However, the court does not say whether or not a shorter time frame would or would not fall within their term of “lengthy period of time.”  Thus, all we can take from this is that if an employee who is on a leave of absence fails to communicate with an employer for a lengthy period of time, in this case 18 months, the employer may start making some decisions regarding a disabled employee. However, employers must exercise caution as another court, under similar facts, with the only factor being that there was no direct communication from the employee to the employer for 18 months, might still find that the employer failed to meet its obligation under §12940 (n), since an employer could be made aware of an employee’s desire to return to work or to be accommodated through many different avenues. Further, the court does not state that 18 months is the cutoff point that definitely defines “lengthy” period of time. Each case will have different facts that determine what is “lengthy.”

The Employee Was Notified That She Was Incapable Of Performing Her Job
The second factor that the court considered was that Milan was notified (via the workers’ compensation administrator) that the physician considered her incapable of performing her usual job.  However, it is important to note that in the Milan case, the only notice given to the employee, prior to the termination letter, was the notice sent via the City’s workers’ compensation administrator advising Milan that pursuant to the doctor’s findings she was deemed incapable of performing her usual job and  she was thus being offered rehabilitation and retraining benefits. Under current workers’ compensation laws, this notice is no longer sent to the injured worker, as there is no longer any such benefit available.  Therefore, in the Milan case, the only notice that the employee received directly from the City indicating that they considered Milan incapable of performing her job was contained in the termination letter, which was sent 18 months after the last day Milan worked for the City. 

Would this be deemed sufficient notice from the employer in the post-rehabilitation era? Most likely not, since this was not the notice that theMilan court focused upon. Instead, the court focused on the notice regarding rehabilitation benefits which the employee received from the workers’ compensation administrator, and this occurred a significant time prior to the termination notice sent by the employer.

In conclusion, although the Milan case provides employers with some reassurance that there is a line that courts will draw in determining if an employee did act in good faith by initiating the interactive process in a timely fashion, and, employers can take heart that the courts will require a disabled employee to make some effort and proceed in good faith if they desire to return to work and obtain a reasonable accommodation,  since the underlying facts of this case occurred during a period of time when rehabilitation benefits were offered, in my opinion, employers still need to exercise caution when considering whether or not to terminate a disabled employee who has been on an extended leave of absence. Certainly, prudence dictates that employers should always engage in the interactive process before taking any steps that could be deemed an adverse employment action.

DSkeren

[1] In her lawsuit, although Milan asserted that she attempted to dispute this determination with the claims administrator or the workers’ compensation appeals board, she conceded that she accepted the rehabilitation benefits offered.