Sec. 12177 - The Interactive Process

ยง 12177. The Interactive Process

(a) Whenever a person who receives a request for a reasonable accommodation cannot immediately grant the requested accommodation, the Act requires the person considering the request to engage in an interactive process with the individual with a disability or the individual's representative. The purpose of the interactive process is to exchange information to identify, evaluate, and implement a reasonable accommodation that allows the individual with a disability equal opportunity to use and enjoy a dwelling or housing opportunity. The Act does not predetermine the outcome of any interactive process. However, the Act requires that the interactive process be timely (pursuant to subsection (d)) and that it be conducted in good faith. Good faith means the person considering the request must make a fair and honest effort to engage in the interactive process and to consider the request.

(b) If the person considering the request for accommodation believes they do not have sufficient information to establish either that a disability exists or the nature of the disability-related need for the accommodation, or if the nexus between the disability and the requested accommodation is not clear to the person considering the request for accommodation, the person considering the request for accommodation must seek clarification or additional information pursuant to section 12178 from the individual with a disability or the individual's representative. The person considering the request must not deny it for lack of information without first requesting the clarification or additional information and providing a reasonable opportunity for the individual requesting the accommodation to provide it.

(c) If the person considering the request believes that the initially requested accommodation cannot be granted for a reason permitted under section 12179(a)(3)-(6), the person considering the request must try to identify if there is another accommodation that is equally effective and must discuss with the individual with the disability or the individual's representative whether other alternative accommodations would be equally effective in meeting the needs of the individual with a disability. Equally effective means that the alternative accommodation will allow the person with the disability to use and enjoy a dwelling or housing opportunity as well as the requested accommodation would have. If an alternative accommodation would effectively meet the disability-related needs of the individual and could not be lawfully denied for a reason permitted under section 12179(a)(3)-(6), the person considering the request must grant it. The individual requesting the accommodation is not obligated to accept an alternative accommodation if the alternative accommodation will not meet the needs of the individual with the disability and the initially requested accommodation could not be lawfully denied for a reason permitted under section 12179. In many cases, the individual with the disability has the most accurate knowledge about the functional limitations posed by their disability, and therefore should be given significant weight.

(d) Requests for reasonable accommodations must be promptly considered as determined on a case-by-case basis. The time necessary to respond to a request depends on many factors, including:

(1) The nature of the accommodation under consideration;

(2) Whether it is necessary to obtain supporting information because the disability or the need for the accommodation is not obvious or known to the person considering the request;

(3) Whether the accommodation is needed on an urgent basis; and

(4) Whether it is necessary to engage in the interactive process to resolve the request.

(e) An undue delay by the person considering the request, for example, when there is a failure to act promptly on the need to acquire additional information pursuant to section 12178 or when there is no response to the request in a reasonable time, may constitute a denial of a reasonable accommodation. Whether a request has been promptly considered is a case-by-case factual determination.

(f) A failure to reach an agreement on an accommodation request after a reasonable attempt to do so is in effect a decision not to grant the requested accommodation. If the individual requesting the accommodation or their representative has, after a reasonable opportunity, unreasonably failed to provide relevant information that was requested consistent with the regulations, the person considering the request may find this failure to be grounds for determining that the accommodation could not be granted. What will constitute a reasonable attempt, a reasonable opportunity, or an unreasonable failure to provide relevant information will depend on the individual facts of every case, but can include factors such as the length of time spent in discussions or taken to provide information; whether the parties have acted in good faith; and whether there were clear efforts to communicate what information was required to evaluate the accommodation.

(g) If after a denial of an initial request for an accommodation, the individual with a disability or their representative makes a later request for the same or similar accommodation, the latter request must be considered pursuant to these regulations independently of the initial request.

(1. New section filed 9-16-2019; operative 1-1-2020 (Register 2019, No. 38).)

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1, 12927, 12955 and 12955.3, Government Code; and Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n (2004) 121 Cal.App.4th 1578.

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