By: Caleb Miller
The Americans with Disabilities Act and the California Fair Employment and Housing Act (“FEHA”) requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause the business an undue hardship.
Employees who are injured on the job or even outside the job, or due to some medical condition, are entitled to a workplace accommodation, even if it is just extended unpaid leave during recovery. This prevents an employer from simply terminating an employee the second there is a medical condition or health issue, tantamount to disability or medical condition discrimination.
Generally, a reasonable accommodation is any workplace modification or adjustment that enables the disabled employee or applicant to perform their essential job functions. Swanson v. Morongo Unif. School Dist., 232 Cal. App. 4th 954, 968-969 (2014). Reasonable accommodations can include, but are not limited to, the following:
- Changing job duties
- Providing leave for medical care
- Changing work schedules
- Relocating the work area
- Providing mechanical or electrical aids
- Ergonomic update to work station
Employees with disabilities may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act. These employees may also substitute unpaid leave and use their paid leave upon request. However, an employer will not have the right to terminate an injured employee before the employee has had the opportunity to use the leave that is available to him through the FMLA, CFRA, and his Paid Sick Leave.
HOW DOES AN EMPLOYER BECOME AWARE OF A NEED FOR AN ACCOMMODATION?
An employer may become aware of the need for an accommodation by:
- Request from an employee
- Request made by a third party on behalf of the employee
- Request made by a representative of the employee (such as a spouse)
- Request initiated by a manager who becomes aware of a need for an accommodation either from the employee or through observation.
It is important to remember that an employer that is aware that an employee requires an accommodation must engage in the interactive process to determine whether an accommodation is necessary and possible.
THE INTERACTIVE PROCESS
When and Employee informs his employer that he has been injured, or when the employer comes to find out that an employee has been injured, either physically or mentally, the employer must engage in the interactive process. A “timely, good faith” Interactive Process is now a stand-alone statutory requirement in the California Code of Regulations (CCR, title2, section 7294.0). California State and Federal laws define the “Interactive Process” as an on-going communication between the employer and the applicant or employee with a known disability in an effort to provide reasonable accommodation. It is unlawful for employers to fail to engage in a timely, good faith, interactive process whether or not the interactive process would have resulted in an obligation to provide a reasonable accommodation.
Employers often attempt to deny having knowledge of the need for a reasonable accommodation stating that the employee did not directly request one. This is not the law. The employer should know to engage in the interactive process to begin developing a reasonable accommodation as soon as they become aware of the potential need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation.
In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. 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.
LACTATION ACCOMMODATION
Pregnancy disabilities are included in the need to provide reasonable accommodations to disabled employees. Pursuant to Labor Code Section 1030 every employer, including the state and any political subdivision, must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child each time the employee has a need to express milk. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission need not be paid. Pursuant to Labor Code Section 1033, the denial of a break or adequate space to express milk may result in the recovery of one hour of pay at the employee’s regular rate of pay for each violation by filing a wage claim under Labor Code section 226.7.
EXCEPTIONS TO REASONABLE ACCOMMODATIONS
FEHA requires California employers to accommodate an employee or applicant’s known physical or mental disabilities, except where one of the following exceptions applies:
- The employer need not provide an accommodation that results in undue hardship to business operations. Government Code § 12940(m); 2 Cal. Code Reg. § 11068; CACI 2541.
- The employer need not provide an accommodation allowing the use of illegal drugs, including medical marijuana. Ross v. Raging Wire Telecommunications, Inc., 42 Cal. 4th 920 (2008).
By: Caleb Miller