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Jun 24, 2016

Telling a California employee to see doctor not enough to satisfy interactive process

Disability 

Showing just how far an employer must go to satisfy California’s Fair Employment and Housing Act (FEHA), a federal district court recently refused to dismiss an employee’s claim that his employer failed to engage in a second round of disability accommodation talks.

Showing just how far an employer must go to satisfy California’s Fair Employment and Housing Act (FEHA), a federal district court recently refused to dismiss an employee’s claim that his employer failed to engage in a second round of disability accommodation talks. The employee, originally a cut-and-die operator at a corrugated container plant, was placed in a different position upon his return from shoulder surgery to accommodate his permanent limitations. The court confirmed this as fully satisfying FEHA’s interactive process and accommodation requirements. A few weeks into the new position, the employee asked for a different job and complained about shoulder pain from using an overhead lever, lifting over 30 pounds, and working long hours. In response, the HR Manager and supervisor advised him to see his doctor about new limitations. Although the employee didn’t go to the doctor, the court focused on the company’s failure to talk with the employee about his new concerns. According to the court, the company must “at least engage in a dialogue with plaintiff in response to his concerns about the overhead lever and overtime hours before summarily concluding that he had to return to his doctor.” As a result, the employee will be able to ask a jury to decide whether the company failed to engage in the interactive process, and whether the company should also be on the hook for the employee’s subsequent termination (Thomsen v. Georgia-Pacific Corrugated, LLC, ED Cal, June, 2016). 

Tips: This case shows how important it is to engage with employees when they raise concerns about physical difficulties doing their jobs, even if you’ve already completed an accommodation process. Although you do not need to provide the new accommodation requested, you do have to prove that you did everything possible to talk to them about it. This becomes even more difficult if you feel the employee is just trying to game the system or avoid work. If this is the case, take a deep breath, respond to the complaints with a clean slate, and document your efforts. Then if he or she is unhappy with the results, you can prove that you made every effort to engage in dialogue. For help with the interactive process, see Vigilant’s Legal Guide, “ADA: Reasonable Accommodation and the Interactive Process” or call your Vigilant employment attorney.

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