Protecting Your Rights to Reasonable Accommodation in the Workplace
Beginning in the 1980s, federal law established a mandate for employers to provide reasonable accommodation for disabled people in the workplace. In addition, California law has buttressed the reasonable accommodation requirements established by the American with Disabilities Act or ADA.
When a business or company fails to accommodate an employee, there can be grounds for a labor board complaint or a civil lawsuit.
The attorneys at Eldessouky Law can help. You can reach a committed, experienced disability law attorney from our firm by calling (714) 409-8991. We are eager to answer any questions you have about your employment situation and provide you with information you need in regard to the ADA and associated California law.
California employment law requires businesses with five or more employees to provide reasonable accommodation for workers with disabilities. An employment lawyer can more fully explain the application of the reasonable accommodation doctrine as established by federal and state law.
When does an Employer Become Obligated to Offer Reasonable Accommodation?
An employer or other covered entity has an affirmative duty to make reasonable accommodation(s) for the disability of any individual applicant or employee if the employer or other covered entity knows of the disability, unless the employer or other covered entity can demonstrate, after engaging in a process involving interaction between employer and employee, that the accommodation would impose an undue hardship.
This affirmative duty means that if your employer knows you are suffering from a disability – or has reason to believe you are suffering from a disability – they have a duty to explore accommodations with you. This process is often referred to as the interactive process and must be conducted in good faith. The interactive process typically involves detailed exchange of information between the employer and employee.
Top Five Examples of Reasonable Accommodation
1) Giving an employee time to recuperate after an accident, injury, or illness
Allowing the employee to stay at home and not terminate their employment is a form of accommodation that must be explored. Holding a job open for a disabled employee who needs time to recuperate or heal is, in itself, a form of reasonable accommodation and maybe all that is required in a situation in which it is likely that the employee will be able to return to an existing position at some time in the foreseeable future.
2) Relocating the work area or providing a reassignment of worker
3) Providing a part-time or modified work schedule
- Changing work schedules may be a way to ensure your work is still getting done while respecting your doctor’s orders. Examples of this can be changing your start and end time, or the days in a week that you are scheduled.
4) Changing job duties
5) Providing mechanical or electrical aids
- If the difference between doing your job and not is an extra tool, part, or aid, this may be something your employer is required to give you while under work restrictions.
Top Five Mistakes Employers Make with Disabled Employees
1) Employers forget or neglect to give appropriate accommodation to disabled employees
2) Employers tell their employees to not return until they are 100% “recovered”
- Employers are obligated to work what whatever restrictions you have and must explore the possibility of accommodating you.
3) Retaliate against employees with a disability
- Employers are prohibited from taking any adverse employment actions against an employee because of their disability, or related request for accommodation. These actions can include demotion, harassment, and termination. If you feel an employer has treated you differently because of your disability its employment you speak with one of our Anaheim disability discrimination Lawyer to assist you.
4) Communicate incorrect of legally incorrect deadlines to employees
- Employees are not required to know the law and often times trust their employer to inform them of their rights. Unfortunately, employers may blur the lines or communicate false information to avoid their legal obligations. It is important that if you are dealing with a disability that has affected your work that you contact an employment attorney to ensure everyone is following the rules.
5) Terminate an employee while on medical leave
- Under various State and Federal laws employees are protected from being terminated while on medical leave. In order to determine if a termination supports a claim for disability discrimination, you’ll need to consult with an Anaheim employment attorney to assess all circumstances surrounding the termination and the reasons your employer has claimed.
When Can Employers Refuse to Provide Reasonable Accommodations?
If an employee accommodation would present an undue hardship to the operation of the employer’s business, an employer can legally refuse to accommodate a request for reasonable accommodation from an employee. (Fair Employment and Housing Act)
Undue hardship is defined as an action requiring significant difficulty or expense. Under FEHA, Courts use the following factors (per Cal. Gov. Code § 12926) to determine whether an undue hardship exists:
- The nature and cost of the accommodation requested.
- The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
- The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
- The type of operations, including the composition, structure, and functions of the workforce of the entity.
- The geographic separateness or administrative or fiscal relationship of the facility or facilities.
Note that FEHA applies to employers with five or more employees, per subsection (d) of Cal. Gov. Code § 12926 and that the definition of “employers” includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities but does not include religious associations or corporations not organized for private profit.
Reasonable Accommodations – “Essential Job Function” Concerns
An employer is permitted to terminate an employee with a disability if, after being given a reasonable accommodation, they still are unable to perform their job’s essential functions. (Fair Employment and Housing Act) “Essential functions” include the fundamental job duties of the employment position that the individual with a disability holds or desires. “Essential functions” do not include the marginal functions of the position in question.
Courts look at several factors when determining if a job function is essential (per subsection (f) of Cal. Gov. Code § 12926), including:
- Whether the function may be essential because the reason the position exists is to perform that function.
- Whether the function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
- Whether the function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.
Evidence of whether a particular function is essential includes, but is not limited to the following:
- The employer’s judgment as to which functions are essential.
- Written job descriptions prepared before advertising or interviewing applicants for the job.
- The amount of time spent on the job performing the function.
- The consequences of not requiring the incumbent to perform the function.
- The terms of a collective bargaining agreement.
- The work experiences of past incumbents in the job.
- The current work experience of incumbents in similar jobs.
Landmark Cases – Accommodation Request Matters Influencing California Law
In Jensen v. Wells Fargo Bank, the California Court of Appeals held that an employee will prevail on a claim against an employer for failing to reasonably accommodate unless the employer can establish:
- Reasonable accommodation was offered and refused;
- There was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or
- The employer did everything in its power to find a reasonable accommodation, but the informal, interactive process broke down because the employee failed to engage in discussions in good faith.
In Barnett v. U.S. Air, Inc., the employee, a warehouse worker, had seriously injured his back and sought accommodation. The employee brought suit for failure to reasonably accommodate and failure to engage in an interactive process with the goal of finding a reasonable accommodation. The Ninth Circuit Court of Appeal held that the regulatory requirement to engage in an informal, interactive process in order to attempt to identify a reasonable accommodation was mandatory. The Court also found that liability arises for failure to engage in the interactive process when a reasonable accommodation would otherwise have been possible.
Reasonable Accommodation Considerations (In a Nutshell)
If a major life activity is significantly limited by a worker’s injuries, that worker is considered to be disabled under California law. Employers are required to provide disabled workers with reasonable accommodations, unless an accommodation request would be unduly burdensome to the employer either financially or practically. There are specific legal considerations that must be evaluated by an employer when determining whether a reasonable accommodation request is or is not unduly burdensome.
Reasonable accommodations can take many forms. Most commonly, accommodations involve adjustments to work schedules and/or duties, intermittent or short-term medical leave, and improvements to accessibility within the workplace. These accommodations may be warranted so that the disabled employee can fulfill the essential functions of their job and/or enjoy the benefits of their employment.
An employer is only permitted to lawfully terminate an employee with a disability if, after being granted access to any reasonable accommodations that meet the undue burden test, that employee is still unable to perform their job’s essential functions. Employers can be held legally liable for failure to grant reasonable accommodations as required by state and federal law.
Retain an Experienced Disability Law Lawyer to Protect Your Rights
The first step in protecting your important legal rights is retaining a member of the legal team at Eldessouky Law.
Life can be difficult enough without the stress of an unfair workplace. You can schedule a free consultation and case evaluation by either contacting us online or by calling our office at (714) 409-8991.
There is never a charge for an initial consultation with our firm.
Eldessouky Law makes an attorney fee promise to you. Our firm will never charge an attorney fee unless we obtain a favorable settlement or judgment of your reasonable accommodation case.