December 10, 2018
The California Fair Employment and Housing Act (FEHA) requires employers who regularly employ five or more persons to make reasonable accommodation for the known disabilities of their employees and job applicants, to enable them to perform a position’s essential functions, unless doing so would present an undue hardship to the employer’s operations. [Cal. Gov. Code §§ 12900 – 12996.]
Under the FEHA, an employer has an affirmative duty to accommodate a disabled employee or job applicant. This duty arises as soon as the employer is aware of the employee’s or applicant’s disability, even if the employee or applicant has not requested any accommodation. [Cal. Code Regs., tit. 2, § 11068(a).]
An Employer Must Engage in an Interactive Process with the Employee or Applicant
California law requires the employer to engage in an interactive process with the employee or applicant to determine effective reasonable accommodations, if any, for the known physical or mental disability of the employee or applicant. [Cal. Gov. Code § 12940(n).] Failing to engage in the interactive process, refusing to provide a reasonable accommodation, or falsely claiming that an accommodation would be an undue hardship for the employer, can have disastrous consequences for the employer.
For example, a recent jury trial involved Della Hill, a Los Angeles drug addiction counselor who went on medical leave for a broken arm. While on leave, she was diagnosed with major depression. Her treating physician advised her employer that she would need more time off than the 12 weeks provided under the California Family Rights Act. At that point, the employer should have engaged Ms. Hill in an interactive process and attempted to provide reasonable accommodation. Instead, the employer fired her. At trial, the employer claimed it fired Ms. Hill because the company had lost funding and that keeping Ms. Hill on the staff would have been an undue hardship. Evidence was to the contrary, and the jury awarded Ms. Hill $4.5 million, including $2.6 million in punitive damages. [Hill v. Asian American Drug Abuse Program, Inc. (Super. Los Angeles County, 2018, No. BC582516).]
An Employer Can Refuse to Offer Accommodation Under Certain Circumstances
An employer is not required to accommodate illegal activity. [Ross v. Ragingwire Telecommunications, Inc. (2008) 42 Cal.4th 920, 926 (“The FEHA does not require employers to accommodate the use of illegal drugs.”)] An employer can also refuse to offer accommodation to a disabled employee or job applicant only if the employer can demonstrate that accommodating the employee’s disability would cause an undue hardship to the employer’s operations. Undue hardship is defined as an action requiring significant difficulty or expense, when considered in light of several factors, including the nature and cost of the accommodation needed and the overall financial resources of the employer. [Cal. Gov. Code § 12940(m).]
Employer’s Duty to Ascertain and Offer Suitable Jobs
Additionally, an employer who knows of an employee’s disability has an affirmative duty to make known to the employee other suitable job opportunities with the employer, and to determine whether the employee is interested in, and qualified for, those positions, if: (1) the employer can do so without undue hardship; or (2) the employer offers similar assistance or benefit to other disabled or non-disabled employees; or (3) the employer has a policy of offering such assistance or benefit to any other employees. [Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950 – 951.]
Examples of Reasonable Accommodations
Selection of an appropriate accommodation is an individualized process depending on the limitations of the applicant’s or employee’s disability and the needs of the particular job position. [Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. 11.] The FEHA provides a non-exhaustive list of possible accommodations:
• Making facilities accessible to and usable by disabled individuals (by, for example, providing a wheelchair-accessible work site, braille signage, or reserved parking spaces);
• Job restructuring (for example, to eliminate non-essential functions);
• Offering part-time or modified work schedules;
• Reassigning to a vacant position;
• Acquiring or modifying equipment or devices to accommodate an employee’s medical condition;
• Adjusting or modifying examinations, training materials, or policies (for example, to educate or modify the attitudes of co-workers);
• Providing qualified readers or sign language interpreters;
• Allowing the employee a flexible work schedule;
• Allowing applicants and employees to bring service animals to the work site; and
• Other similar accommodations for individuals with disabilities.
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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.