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California law under the Fair Employment and Housing Act (FEHA), as well as the federal Americans With Disabilities Act (ADA), requires employers, with 5 or more employees, provide reasonable accommodations that will allow an employee with a disability to perform the essential functions of his or her job. Government Code Sec.12940 (m). Failure to do so may subject the employer to liability. The duty to reasonably accommodate applies not only to employees with actual disabilities, but employees who are mistakenly regarded or perceived as disabled.
Interrelated with the duty to reasonably accommodate the disabled employee is the employer's duty to engage in the interactive process timely and in good faith with the employee, who has the same duty. Government Code Sec. 12940(n). What is the interactive process? The interactive process is simply a dialogue or exchange of information between the employer and employee necessary to determine what type of accommodation, if any, will enable the employee to perform the essential functions of his or her job. The interactive process is designed to identify the precise limitations resulting from the disability (generally restrictions imposed by a doctor due to a physical or mental disability) and what potential reasonable accommodations could overcome those limitations to enable the employee to remain employed.
What constitutes a reasonable accommodation? Although not exhaustive, the following are some of the more common accommodations:
The foregoing list of reasonable accommodations is certainly not exhaustive. Employers are well advised to proceed with an open mind when they have notice an employee may need assistance in performing their job due to apparent restrictions. Often times employers create liability unnecessarily when they require employees with restrictions to be "100% healed" before returning to work. Courts consistently find such policies are inconsistent with the individualized accommodation obligation and violate the ADA and FEHA as a matter of law.
The primary limit on an employer's duty to accommodate a qualified employee with a disability is whether to do so creates an undue hardship, an issue which will be addressed in a subsequent article.
Various resources available to employers to assist with the interactive process and determination whether a reasonable accommodation exists that would enable the employee to perform the essential functions of his or her job are available. Some of these resources are free, for example, the Job Accommodation Network (www.askjan.org) which offers a database of accommodations for various physical and mental conditions. Other resources, such as the utilization of a vocational rehabilitation or similar expert, will generally result in an expense to the employer. While some accommodations may require an employer to purchase special equipment or software, certain tax credits or other tax related breaks may be available.
In conclusion, disability discrimination claims can be avoided if both parties timely and in good faith engage in interactive process maintaining an open mind throughout while exploring if any accommodations are available that would enable the disabled employee to remain employed.