Reasonable accommodations are legally required changes that an employer must make to the position or the workplace itself in order to enable a disabled employee to perform his or her job duties or a disabled job applicant to apply for positions. An employer does not need to make reasonable accommodations for an employee only if doing so would pose an undue hardship.
- What counts as a “disability” under the law?
The Federal Americans with Disabilities Act (ADA) prohibits discrimination in the workplace on behalf of the worker’s disability or perceived disability. The ADA defines “disability” as “A physical or mental impairment that substantially limits one or more major life activities.” [emphasis added] 42 U.S.C.A. § 12102.
California provides for protections for disabled persons under the California Fair Employment and Housing Act (FEHA) that are independent of the ADA. California’s definition specifically includes both physical and mental disabilities that limit a major life activity. See Gov. Code, § 12926 (j) and (m). California broadly construes “major life activity” to include “physical, mental, and social activities and working.” Gov. Code, § 12926 (m)(1)(B)(iii).
An important distinction between FEHA and ADA is that in California, the limitation on major life activity does not need to be “substantial”. Because the FEHA requires only a “limitation” (not a “substantial limitation”) on a major life activity, individuals with short-term or temporary conditions may qualify for protection under the FEHA though the same condition might not qualify under the ADA. (See Diaz v. Federal Express Corp. (CD CA 2005) 373 F.Supp.2d 1034, 1051-1052 (FEHA has no durational requirement for evaluation of whether condition constitutes disability)).
- I have an employee who is “disabled” under the law, do I have to provide accommodations? How do I know what accommodations are “reasonable”?
- Is the employer covered by the law?
Only employers of five or more employees must provide reasonable accommodations for an employee with a physical or mental disability. Gov.C. § 12926(d). The number of employees includes part time employees as well as individuals performing service under any appointment, contract of hire or apprenticeship, express or implied, oral or written. (2 CCR § 11008(a)).
- Determine what is reasonable
Each employer who has five or more employees must engage in an interactive process to determine a reasonable accommodation for the employee’s disability. The failure to do so is a separate cause of action. 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 reasonable accommodation.
What is a reasonable accommodation will vary based on the individual’s specific condition(s). “Reasonable accommodation” may include either of the following:
(1) making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities; or
(2) job restructuring; part-time or modified work schedules; reassignment to vacant positions; acquisition or modification of equipment or devices; adjustment or modification of examinations, training materials, or policies; provision of qualified readers or interpreters; and other similar accommodations for persons with disabilities (Gov. Code, § 12926(n)).
The accommodation efforts must be successful; they must be individually tailored to meet the needs of the disabled employee; and they must preserve the disabled employee’s employment status. (See County of Fresno v. Fair Employment & Housing Com., 226 Cal. App. 3d 1541).
An employer who may like to see a list of examples can look at Cal. Code Reg., tit. 2, § 7293.9(a).
- When an employer does not have to accommodate a disability
Generally speaking, if an employee can perform the essential functions of the job with a reasonable accommodation, it is unlawful for the employer to fail to provide an accommodation that would enable the individual to perform the job.
However, it is possible that after engaging in the process, it may be determined that providing the necessary accommodations will be an “undue burden” on the employer. Gov. Code, § 12940(m). If the employer can prove either that the employee cannot perform the essential functions of the job even with reasonable accommodation, that reasonable accommodation will impose undue hardship on the employer, or that the employee cannot perform the essential functions of the job without posing a health or safety threat to himself or herself and others, the employer is not required to hire or retain the disabled person. (See, e.g., Ackerman v. Western Elec. Co., Inc., 860 F.2d 1514).
“Undue hardship” is defined as an action requiring “significant difficulty or expense” when considered in light of the following factors:
- Nature and cost of the accommodation needed, taking into consideration the availability of tax credits and deductions and/or outside funding;
- Overall financial resources of the facilities involved in providing the reasonable accommodations, the number of persons employed at the facility and the effect of the accommodation on expenses and resources or on the operations of the facility, including the impact on other employees’ ability to perform their duties and the facility’s ability to conduct business;
- Overall resources of the covered entity, the overall size of the business with respect to the number of employees, and the number, type and location of the covered entity’s facilities;
- Type of operations of the employer entity, including the composition, structure and functions of its workforce; and
- Geographic separateness, administrative or fiscal relationship of the facility or facilities involved. (Gov.C. § 12926(u); 2 CCR § 11065(r)).
- What is the bottom line?
Employers should recognize their legal obligations towards disabled employees and job applicants. What is a “reasonable accommodation” for a disabled employee may be situationally dependent. Employers are advised to consult an attorney for more targeted guidance on fulfilling their obligations under the law.