LEGAL GUIDE: REASONABLE ACCOMMODATION LAWS FOR EMPLOYERS

Employers are experiencing a sharp increase in requests from employees and applicants for workplace accommodations because of a physical or mental disability. There are a myriad of laws and regulations that govern an employer’s duties and obligations when it receives a request for workplace accommodations or knows of an employee in need of workplace accommodations, even if the employee has not requested it. If the employer fails to comply with these laws, it may be found liable for workplace discrimination based on a disability. This is a discussion of an employer’s obligations under California law regarding requests for reasonable accommodation.1

FEHA

The California Fair Employment and Housing Act (“FEHA”) applies to any employer who regularly employs five (5) or more persons, including the state, subdivisions of the state and cities. However, these rules do not apply to religious associations or corporations not organized for private profit. [Gov. Code §12926(d).] or to any employee who is employed by his or her parents, spouse or child or who works under a special license in a nonprofit sheltered workshop or rehabilitation facility. [Gov. Code §12926(c).] The following prohibitions apply to both current employees and applicants for employment.

Interactive Process

When an employee first requests reasonable accommodations or the employer has reason to know the employee may need workplace accommodations, the employer and employee are required to first engage in what is called the interactive process. This interactive process is when the employer and employee exchange information about the disability and its limitations and brainstorm on ways in which the employer could accommodate the disability so that the employee can perform his/her essential job functions. This is an important part of the process and the employer’s failure to engage in the interactive process itself is a basis for liability. Likewise, if an employee who requests reasonable accommodation fails or refuses to engage in the interactive process in good faith, the employee’s claim for discrimination will fail.

California Government Code § 12940(n), provides in relevant part that it is unlawful for an employer to fail to engage in a timely, good faith interactive process with the employee to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee with a known disability. As such, the failure to engage in good faith in the interactive process is a separate and distinct unfair employment practice. [Wysinger v. Automobile Club of So. Cal (2007) 157 Cal.App.4th, 413, 424-426.] The purpose of the interactive process is to identify and/or implement an effective, reasonable accommodation for the employee. [2 Cal. Code Reg. §11069(a).]

The interactive process is triggered either by a request for accommodation by a disabled employee or the employer’s recognition of the need for accommodation. An employee requesting a reasonable accommodation is required to inform the employer in plain English and need not mention the Americans with Disabilities Act of 1990 (“ADA”) or use the phrase, reasonable accommodation. [Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, 1111-1114.] Employers are required to engage in an interactive process with employees to identify and implement reasonable accommodations.

Both the employee and the employer have specific obligations during the interactive process, which are detailed in the supporting regulations. An employer’s obligations include:

  1. 1. Analyzing the particular job involved and determining its purpose and essential functions;
  2. 2. Consulting with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation;
  3. 3. In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position and;
  4. 4. Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
  5. 5. Either grant the employee’s requested accommodation, or reject it after due consideration, and initiate discussions with the employee regarding alternative accommodations.

If information provided by the employee needs clarification, the employer must identify the issues that need clarification, specify what further information is needed, and allow the employee a reasonable time to produce the supplemental information. [2 Cal. Code Reg. §11069(c).]

The employer is required to consider any and all reasonable accommodations of which it is aware or which are brought to its attention by the employee, except ones that create an undue hardship. [2 Cal. Code Reg. §11068(e).]

Likewise, an employee also has obligations in the interactive process. The employee is required to cooperate in good faith and provide information including:

  1. 1. Reasonable medical documentation confirming the existence of the disability and need for accommodation.
  2. 2. Educational and other qualifications, if the parties are considering a job transfer.
  3. 3. Submitting to a medical examination, if requested by the employer. [2 Cal. Code Reg. §11069(d).]

To prove a claim for failure to engage in the interactive process in good faith, plaintiff must prove that she had a disability that limited a Major Life Activity, which was known to the employer, that plaintiff requested the employer make a reasonable accommodation for the disability, that plaintiff was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that she would be able to perform the essential job requirements, that employer failed to participate in a timely good-faith interactive process with plaintiff to determine whether or not a reasonable accommodation could be made, that plaintiff was harmed, and that employer’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm. [See, California Civil Jury Instructions (“CACI”) No. 2546.]

The interactive process requires communication and good faith exploration of possible accommodations between the employer and employee with the goal of identifying an accommodation that allows the employee to perform the job effectively. Both sides must communicate directly and exchange information. Neither side can delay or obstruct the process. [Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 982, 984-985.]

Reasonable Accommodation

Under FEHA, it is unlawful for an employer to fail to make a reasonable accommodation for the known mental or physical disability of an employee unless the employer can demonstrate that such an accommodation would produce undue hardship to its operation. [Gov. Code § 12940(m).] Thus, an employer must carefully examine requests for reasonable accommodation and evaluate those requests, in conjunction with the teamwork approach in the interactive process, to identify available, effective accommodations. Sometimes, an employer may not be able to implement effective accommodations due to a variety of reasons. However, only undue hardship on the employer is a valid legal excuse.

To establish a claim for failure to provide a reasonable accommodation, the plaintiff must prove that she had a disability that limited a Major Life Activity (normally defined as physical, mental, social activities or working), that the employer knew of the disability, that the plaintiff was able to perform her essential job duties with or without reasonable accommodation, that the employer failed to provide reasonable accommodation for the disabilities, the plaintiff was harmed, and the employer’s failure to provide a reasonable accommodation was a substantial factor in causing plaintiff’s harm. [See, CACI No. 2541.] An employee has the burden of showing the existence of a reasonable accommodation that will enable her to perform the essential functions of her position. [Dark v. Curry County (9th Cir. 2006) 451 F.3d 1078, 1088.] Nonetheless, an employer cannot withhold information that could lead to a reasonable accommodation to avoid liability.

The types of accommodations vary widely depending on the disability and job functions, and can include job restructuring, part-time or modified work schedules, reassignment to a vacant position (under limited circumstances), acquisition or modification of equipment or devices, adjustments or modifications of examinations, training materials or policies, providing qualified readers or interpreters, and other similar accommodations for individuals with disabilities. [Gov. Code § 12926 (o)(2).]

A leave of absence is a commonly provided reasonable accommodation (for example, when an employee is having surgery and needs time off to recover), but a leave of absence can only be used as a reasonable accommodation, if the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodations. [2 Cal. Code Reg. §11068(c).]

Undue hardship is an employer defense. It is defined as an action requiring significant difficulty or expense when considered in light of certain factors, including (1) the nature and cost of the accommodation needed; (2) 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; (3) the overall financial resources of the employer, the overall size of the business of the employer with respect to the number of employees, and the number, type, and location of its facilities; (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; and, (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities. [Gov. Code § 12926 (t)(1)-(5).]

The employer has the burden to prove undue hardship. [Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 35.]

Liability

In a civil action under FEHA, all relief generally available in noncontractual actions may be obtained. [Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 221.] Thus, remedies available to an employee include reinstatement to the employee’s former position (a form of a permanent injunction), back pay (lost wages and benefits through the date of trial), front pay (lost wages and benefits from the date of the trial going forward), emotional distress damages, punitive damages and other pecuniary damages (such as loss of fringe benefits).

In addition, the prevailing plaintiff in a FEHA case is entitled to reimbursement of attorneys’ fees [Gov. Code §12965(b); Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393-394] and court costs, and may be entitled to recovery of her expert witness fees. Thus, an employer’s exposure can be quite large if it does not participate in the interactive process in good faith, or does not provide available, effective reasonable accommodations to an employee with a disability.

When an employer has a situation or potential situation where the interactive process may or should be initiated, it’s wise to immediately consult legal counsel to guide you through the process. As discussed above, the employer has a number of duties and obligations when an employee or applicant is disabled and an employer’s failure to fulfill those duties and comply with its obligations may lead to substantial liability.

The employer may also have obligations under a variety of federal laws, including the Americans with Disabilities Act, which applies to employers with more than 15 employees. California and federal law can be very similar, but there are some distinctions between the two, so compliance with the obligations discussed in this legal guide may not satisfy all requirements under federal law.