Accommodating the Employee with a Disability
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:
- Leaves of absence - courts recognize finite or definite leaves of absence as a reasonable accommodation. Indefinite or open-ended leaves, for the most part, continue to be routinely rejected as reasonable accommodations. A leave of absence can be a reasonable accommodation even if the employer is not governed by the Federal Family and Medical Leave Act and California Family Rights Act. In other words, the employer may not be obligated to provide a leave of absence under federal or state leave of absence laws, but may be required to do so as a reasonable accommodation so long as it does not create an undue hardship.
- Flexible schedules - modifying an employee's schedule, for example, when he or she starts or finishes their day, or allowing the employee to telecommute may be reasonable accommodations.
- Lifting assistance - lifting restrictions are some of the more common limitations imposed on employees. Often times, these limitations can be of short duration or of a permanent nature. A reoccurring issue is whether lifting is an essential function of a particular job as opposed to the means and methods of performing the essential function. Employers frequently mis-analyze the role of lifting and improperly characterize it as an essential function. A multitude of lifting devices are available to assist employees with lifting restrictions for those items which exceed the weight the employee is precluded from lifting.
- "Teamwork" accommodation - arises when an employee is generally part of a crew such that tasks the employee with a disability is unable to perform can be redistributed to others on the crew without creating an undue hardship. In one case, the court concluded the employer's failure to consider the teamwork option exposed it to liability for failing to reasonably accommodate.
- Working from a seated position - providing an employee with a chair when the restriction precludes prolonged standing can be a reasonable accommodation.
- Ergonomic keyboard and voice recognition software - employees with carpal tunnel syndrome or other upper extremity repetitive trauma injuries limiting their ability to use a computer keyboard and/or malice may need these types of accommodation.
- Reassignment to another position - this is generally considered the accommodation of last resort as the primary objective is to accommodate the employee in his or her original position. When no reasonable accommodation exists that enables the employee to remain in their original position, reassignment to another position can constitute a reasonable accommodation. While an employer is not required to create a position or promote the employee, assignment to a comparable or lesser position that is open, vacant and funded may be required. Reassignment does not mean allowing the employee with a disability to competitively apply for the open position, but means placing the employee in the position so long as they are qualified even if the employer prefers another candidate. Furthermore, the employer may be obligated to determine if, once reassigned to the new position, the employee needs an accommodation to perform the essential functions of the reassigned position.
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.