Reasonable Accommodations

The federal Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations for applicants and employees with disabilities and prohibits discrimination on the basis of disability in all aspects of employment. Reasonable accommodation (RA) includes, for example, restructuring jobs, making work-sites and workstations accessible, modifying schedules, providing services such as interpreters, and modifying equipment and policies. The ADA also regulates medical examinations and inquires. 

 

California has a state law similar to the ADA called the Fair Employment and Housing Act (FEHA) . The FEHA was amended to provide significantly broader protections to employees with disabilities. The amendments include an express declaration that the California statutes are intended to extend beyond the federal ADA: broadening the definition of “disability”, delineating new and different unlawful employment practices arising from certain pre-employment and post-employment inquiries, and prohibiting failure to engage in a timely, good faith, interactive process with the employee to determine a RA for the disability.

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The FEHA requires employers of five or more employees to provide RA for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship.  RA can include, but is not limited to, the following:

• job restructuring

• Providing leave for medical care

• part-time or modifying work schedules

• Relocating the work area

• Providing mechanical or electrical aids

• making existing facilities readily accessible to and usable by individuals with disabilities

• acquisition or modification of equipment or devices

• adjustment or modification of examinations, training materials or policies

• reassignment to a vacant position (provided the individual meets the minimum qualifications of the classification and can perform the essential functions of the job)

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In California, it is unlawful for an employer to fail to engage in a timely, good faith, "interactive process." The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation.

The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for RA.

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Employers must initiate an “interactive process” when an applicant or employee requests RA. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation.

 

The CFD has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. The law does not require the use of these or any other forms to make a request for a RA or to engage in an effective, good faith interactive process. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. However, they may be a useful tool for both employers and employees.

 

 FAQ:

 

Q:  Does the ADA or FEHA force employers to hire unqualified individuals with disabilities?

A:  No. Applicants who are unqualified for a job cannot claim discrimination under the ADA or FEHA. Under the ADA and the FEHA, to be protected from discrimination in hiring, an individual with a disability must be qualified, which means he or she must meet all requirements for a job and be able to perform its essential functions with or without reasonable accommodations.

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Q:  If there are several qualified applicants for a job and one has a disability, does the ADA or FEHA requires the employer to hire that person?

A: No. An employer is always free to hire the applicant of its choosing as long as the decision is not based on disability. 

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Q:  Does the ADA or FEHA give job applicants with disabilities advantages over job applicants without disabilities?

A:  No. Neither the ADA nor the FEHA give hiring preference to persons with disabilities.

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Q: Under the ADA or the FEHA, must employers give people with disabilities special privileges, known as accommodations?

A: RA are intended to ensure that qualified individuals with disabilities have rights in employment equal — not superior — to those of individuals without disabilities. RA can be a modification to a job, work environment or the way work is performed that allows an individual with a disability to apply for a job, perform the essential functions of the job, and enjoy equal access to benefits available to other individuals in the workplace.

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Q:  Is providing accommodations for people with disabilities under the ADA or FEHA expensive?

A:  No. The majority of workers with disabilities do not need accommodations to perform their jobs, and for those who do, the cost is usually minimal. Moreover, tax incentives are available to help employers cover the costs of accommodations, as well as modifications required to make their businesses accessible to persons with disabilities.

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Q:  Does the ADA or the FEHA place a financial burden on small businesses that cannot afford to make accommodations for individuals with disabilities?

A: No. Businesses with fewer than 15 employees are not covered by the employment provisions of the ADA, and employers with fewer than 5 employees are not covered by the FEHA. Moreover, a covered employer does not have to provide a RA that would cause an "undue hardship." Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an organization's size, financial resources and the nature and structure of its operation.

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 Q: Under the ADA or the FEHA, can an employer ever fire an employee who has a disability?

A:  Yes. Employers can fire workers with disabilities under three conditions:

• The termination is unrelated to the disability or

• The employee does not meet legitimate requirements for the job, such as performance or production standards, with or without a reasonable accommodation or

• Because of the employee's disability, he or she poses a direct threat to health or safety in the workplace.

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Q: How does an employee request a RA?

A:  Employees should consult an experienced employment law attorney for the best ways for when and how to request a reasonable accommodation.

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Q:  What must an employer do after receiving a request for RA?

A:  Employers should consult an experienced employment law attorney after receiving a request for a RA and before seeking to obtain medical documentation supporting the accommodating request.

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Q:  Is an employer required to provide the RA that the individual wants?

A:  No, but employers should consult with an experienced employment attorney before choosing an accommodation that is effective.

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Q:  How quickly must an employer respond to a request for RA?

A:  An employer should respond expeditiously to a request for RA. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the RA. Unnecessary delays can result in a violation of the ADA and/or the FEHA.

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Q:  May an employer require an individual with a disability to accept a RA that they do not want?

A:  No. An employer may not require a qualified individual with a disability to accept an accommodation. If, however, an employee needs a RA to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, she or he may not be qualified to remain in the job.

 

Q:  May an employer ask whether a RA is needed when a job applicant has not asked for one?

A:  Employers should consult with an experienced employment law attorney on what may be told to or ask of job applicants about RA during the hiring process.

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Q:  Does an employer have to provide a RA to a job applicant with a disability even if the employer believes that it will be unable to provide this individual with a RA on the job?

A:  Yes., but employers should consult with an experienced employment law attorney on providing a RA to a qualified applicant with a disability.

                      

Q:  Does an employer have to provide RA to enable an employee with a disability to have equal access to information communicated in the workplace to non-disabled employees?

A: Yes. Employers provide information to employees through different means, including computers, bulletin boards, mailboxes, posters, and public address systems. Employers must ensure that employees with disabilities have access to information that is provided to other similarly-situated employees without disabilities, regardless of whether they need it to perform their jobs.

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Q:  Must an employer provide RA so that an employee may attend training programs?

A:  Yes. Employers must provide RA (e.g., sign language interpreters; written materials produced in alternative formats, such as braille, large print, or on audio- cassette) that will provide employees with disabilities with an equal opportunity to participate in employer-sponsored training, absent undue hardship. 

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Q:  If, as a RA, an employer restructures an employee's job to eliminate some marginal functions, may the employer require the employee to take on other marginal functions that she or he can perform?

A:  Yes. An employer may switch the marginal functions of two (or more) employees in order to restructure a job as a RA.

 

Q:  Can an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?

A:  No. If an employee with a disability needs additional unpaid leave as a RA, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of their position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of RA.

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Q:  Does an employer have to hold open an employee's job as a RA?

A:  Yes. An employee with a disability who is granted leave as a RA is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship.

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Q:  Can an employer penalize an employee for work missed during leave taken as a RA?

A:  No. To do so would be retaliation for the employee's use of a RA to which they are is entitled under the law. Moreover, such punishment would make the leave an ineffective accommodation, thus making an employer liable for failing to provide a RA.

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Q:  When an employee requests leave as a RA, may an employer provide an accommodation that requires the employee to remain on the job instead?

A:  Yes, if the employer's RA would be effective and eliminate the need for leave. An employer need not provide an employee's preferred accommodation as long as the employer provides an effective accommodation.

 

Q:  How should an employer handle leave for an employee covered by the ADA and/or the FEHA and the Family and Medical Leave Act (FMLA)?

A:  An employer should consult with an experienced employment law attorney to determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.

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Q:  Must an employer allow an employee with a disability to work a modified or part-time schedule as a RA, absent undue hardship?

A:  An employer should consult with an experienced employment law attorney to determine a modified schedule. 

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Q:  How should an employer handle requests for modified or part-time schedules for an employee covered by both the ADA and/or the FEHA and the FMLA?

A:  An employer should consult with an experienced employment law attorney to determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.

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  Q:  Is it a RA to modify a workplace policy?

A:  Yes. It is a RA to modify a workplace policy when necessitated by an individual's disability-related limitations, absent undue hardship. Employers should consult with an experienced employment law attorney to learn about what constitutes a modification of the workplace.

 

Q:  Is reassignment to another position a RA?

A:  Yes. The ADA and the FEHA specifically list "reassignment to a vacant position" as a form of RA. Employers should consult with an experienced employment law attorney to learn about  its legal rights and obligations regarding reassignments as a RA.

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Q:  If an employer has provided one RA, does it have to provide additional RAs requested by an individual with a disability?

A:  The duty to provide RA is an ongoing one. Employers should consult with an experienced employment law attorney to learn about its legal rights and obligations concerning ongoing RA.

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Q:  Does an employer have to change a person's supervisor as a form of RA?

A:  No. An employer does not have to provide an employee with a new supervisor as a RA. Neither the ADA nor the FEHA prohibit an employer from doing so. Furthermore, although an employer is not required to change supervisors, the ADA and/or may require that supervisory methods be altered as a form of RA. Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment.

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Q: Does an employer have to allow an employee with a disability to work at home as a RA?

A:  An employer must modify its policy concerning where work is performed if such a change is needed as a RA, but only if this accommodation would be effective and would not cause an undue hardship. Employers should consult with an experienced employment law attorney to learn about whether essential job functions can be performed away from the work site. 

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Q:  Must an employer withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity?

A:  No. An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity.  An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.

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Q:  Must an employer provide a RA for an employee with a disability who violated a conduct rule that is job- related for the position in question and consistent with business necessity?

A:  An employer must make RA to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship, except where the punishment for the violation is termination. Since RA is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual's disability. Possible RA could include adjustments to starting times, specified breaks, and leave if these accommodations will enable an employee to comply with conduct rules.

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Q:  Is it a RA to make sure that an employee takes medication as prescribed?

A: No. Medication monitoring is not a RA. Employers have no obligation to monitor medication because doing so does not remove a workplace barrier. Employers should consult with an experienced employment law attorney to learn about it legal rights and obligations concerning what effect medication, other medical treatment, or assistive devices may have on an employee's ability to perform the job.

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Q:  Must an employer ask whether a RA is needed when an employee has not asked for one?

A:  Generally, no. As a general rule, the individual with a disability -- who has the most knowledge about the need for RA -- must inform the employer that an accommodation is needed. Employers should consult with an experienced employment law attorney regarding circumstances where an employer should initiate the RA interactive process without being asked.

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Q:  May an employer tell other employees that an individual is receiving a RA when employees ask questions about a coworker with a disability?

A:  Employers should consult with an experienced employment law attorney regarding what may and may not be disclosed regarding  an employee's RA. 

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Q: What can an employer do to educate its employees about RA laws?

A:  Employers might find it helpful to provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA, the FEHA and the FMLA), while also requiring them to protect the privacy of employees. Employers should consult with an experienced employment law attorney to discuss what information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers.

 

If you have any further questions or need additional information about reasonable accommodations, or you need legal representation once a request has been made, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.

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