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The California law that addresses the rights of individuals with disabilities and the obligations of employers is the Fair Employment and Housing Act (FEHA). The FEHA provides protection from harassment or discrimination in employment and also prohibits discrimination in all aspects of housing because of a person’s disability. California disability rights law, in regard to employment, provides protections independent from those in the federal Americans with Disabilities Act (ADA), and California’s definition of disability is broader than the federal standard. The FEHA pertains to private businesses, as well as to the government (but does not include an employer that is a religious association or corporation not organized for private profit.)
To reasonably accommodate an applicant or employee in California, an employer must know what is required by state law and what constitutes a disability under state law. Additionally, applicants or employees must establish that they have a disability as defined by the FEHA before they can be reasonably accommodated.
Under the FEHA, employers are generally required to a) provide reasonable accommodation for those applicants and employees who, because of their disability, are unable to perform the essential functions of their job; and b) engage in a timely, good faith, interactive process with applicants or employees in need of reasonable accommodation.
This how-to guide outlines the various steps involved when handling a request for accommodation from both applicants for employment and current employees. However, the guide is not meant to be nor should it be construed as legal advice, and employers should seek the guidance of California employment law attorneys when making disability accommodation-related decisions in their respective workplaces.
Step 1: Determine Whether the Employer Is Covered by the FEHA
The FEHA defines an employer as a private- or public-sector employer or agent of an employer that either directly or indirectly employs five or more persons. An employer does not include a religious association or corporation not organized for private profit. See, C.G.C. §12926(d).
Step 2: Ensure a Policy and Procedure Exists for Handling Accommodation Requests
Organizations should review their policy and procedures for handling requests for accommodations.
Step 3: Determine if the Employee Is a Qualified Individual with a Qualifying Disability under the FEHA
Employers should review the employee’s accommodation request. California’s law is broader in many aspects than the federal ADA. For example, the ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. However, under California law, disability is defined as an impairment that makes performance of a major life activity difficult.
To determine if an employee has a disability under the FEHA, California employers should use the definition of a disability and a “qualified individual with a disability” wording under provisions of the FEHA, along with information from the employee’s health care provider.
The FEHA defines two categories of disability: mental disability and physical disability. Additionally, employees with a medical condition are also entitled to accommodation under the FEHA. The following are the definitions of physical disability, mental disability and medical condition as outlined in the FEHA.
Physical disabilities include any physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. A physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult. When determining whether a person has a disability, an employer cannot take into consideration any medication or assistive device, such as wheelchairs, eyeglasses or hearing aids, that an employee may use to accommodate the disability. However, if these devices or mitigating measures limit a major life activity, they should be taken into consideration. Physical disability also includes any other health impairment that requires special education or related services; having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss or health impairment known to the employer; and being perceived or treated by the employer as having any of the aforementioned conditions.
Mental disabilities include any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity, or any other mental or psychological disorder or condition that requires special education or related services. An employee who has a record or history of a mental or psychological disorder or condition that is known to the employer, or who is regarded or treated by the employer as having a mental disorder or condition, is also protected.
A mental condition is any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer, or a genetic characteristic. A genetic characteristic can be a scientifically or medically identifiable gene or chromosome or an inherited characteristic that could statistically lead to increased development of a disease or disorder. For example, women who carry a gene established to statistically lead to breast cancer are protected under state law. Employers must keep in mind, however, that Government Code §12940(o) makes it an unlawful employment practice for an employer to subject, directly or indirectly, any applicant or employee, to a test for the presence of a genetic characteristic.
In determining a disability, an employer may request only medical records directly related to the disability and need for accommodation. However, an applicant or an employee may submit a report from an independent medical examination before disqualification from employment occurs. The report must be kept separately and confidentially, as any other medical records, except when a supervisor or manager needs to be informed of restrictions for accommodation purposes or for safety reasons when emergency treatment might be required.
Employers should review all the above factors to determine if there is a disability that needs to be accommodated. If uncertain about the existence of a disability, they should consult with an attorney. If there is no disability, the employer can notify the employee. If state and federal disability laws do not mandate accommodation, employers may wish to offer some form of assistance to maintain positive employee relations.
Step 4: Initiate the Interactive Process
If the worker is a qualified individual with a qualifying disability, then employers may initiate the interactive process. California state law incorporates guidelines developed by the Equal Employment Opportunity Commission in defining an “interactive process” between the employer and the applicant or employee with a known disability.
The guidelines for employers include the following:
Once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation would represent an undue hardship to the business operation. In the process of determining a reasonable accommodation, an employer must enter into a good faith, interactive process to determine if there is a reasonable accommodation that would allow the applicant or employee to obtain or maintain employment.
Determine the essential functions of a position
The first step in the interactive process between the employer and the employee is determining the essential functions of the position. When determining whether a job function is essential, one of the following conditions must exist:
Evidence of whether a particular function is essential includes the employer’s judgment as to which functions are essential; a written job description 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; or the current work experience of incumbents in similar jobs.
HR professionals should review existing job descriptions to ensure they include all aspects of the job and list all essential functions, including any physical requirements such as standing or sitting for long periods of time or lifting requirements.
Discuss job-related limitations and possible accommodations
Once an employer has reviewed the employee’s accommodation request and evaluated the essential functions of the position, the employer should engage in a process in which the employee, health care provider and employer each share information about the nature of the disability and the limitations that may affect the employee’s ability to perform the essential job duties. Doing so entails a good faith effort by the employer and the employee to discuss the limitations or performance issues the employee’s disability may pose. The purpose of this discussion is to determine what (if any) accommodations may be needed.
Employers may ask the employee to provide appropriate documentation from the employee’s health care or rehabilitation professional regarding the nature of the impairment, its severity, the duration, the activities limited by the impairment(s) and the extent to which the impairment(s) limits the employee’s ability to perform the job’s essential duties and functions. See, a sample medical inquiry form for ADA accommodation.
An employer may require any examinations or inquiries that it can show to be job-related and consistent with business necessity. Because the employee’s health care provider may not be able to disclose information or answer questions about the employee’s disability without the employee’s permission, employers should obtain a written medical release or permission from the employee.
Step 5: Determine a Reasonable Accommodation
The interactive process may result in the identification of more than one potential accommodation.
Once an employer has engaged in the steps listed above, it should begin the process of determining reasonable accommodation options.
Reasonable accommodations can vary in price and scope. Some are free or low cost, such as a change in work schedule, granting extended unpaid leave or telecommuting. Others may be more costly, such as making modifications to existing facilities.
Accommodations are considered to be reasonable if they do not impose an undue hardship on the employer. Reasonable accommodations may include the following:
The types of reasonable accommodation that may be needed or selected as a result of the interactive process of individualized assessment are not limited to the above and will vary from case to case. The types of accommodations needed and provided will depend on the limitations of the disability and the individual employee’s ability to perform the essential job duties of the position. One standardized type of accommodation may not meet the needs of employees who have similar disabilities but different impairments or limitations when performing their essential job functions. Therefore, accommodations should be designed to meet the specific circumstances of the individual.
A good source of possible accommodations based on conditions can be found at the Job Accommodation Networkwebsite. In addition to having many tools for employers, including correspondence samples, the website offers an extensive list of disabilities with low- to no-cost accommodation the employee and employer could consider. The list Accommodation Information by Disability: A to Z contains hundreds of accommodation ideas.
The FEHA provides legal reasons an employer can permissibly refuse to accommodate a request for reasonable accommodation from an applicant or employee. One of the legal reasons is whether the accommodation would present an undue hardship to the operation of the employer’s business. However, employers should exert caution when using the undue burden or hardship defense as a rationale to not accommodate an FEHA disability accommodation request.
If an employer denies accommodation because it would be an undue hardship, the employer must show that the accommodation requires significant difficulty or expense, when considered in the light of the following factors:
For example, an applicant with a severe vision impairment applies for employment with a small store that has only four other employees. The applicant requires assistance to work the cash register by having another employee present at all times or a special cash register installed. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or the cost of remodeling to accommodate two employees at the register at the same time.
Employers should obtain input from the supervisor who has knowledge about the duties of the position and the worksite to help determine the feasibility and what may be a reasonable accommodation. Massive modifications or restructuring to the essential job duties so that the position no longer resembles its purpose—for instance, removing driving duties from a truck driver—is also not considered reasonable.
Once the employer has chosen the most effective accommodation options to be implemented, the employer should then discuss those accommodation options with the employee who requested the accommodation. Although employers are free to choose among effective accommodation options, consulting with and considering the preference of the employee is a recommended practice as it further demonstrates good faith on the employer’s part.
Before substituting an employee’s preferred accommodation with the employer’s preferred accommodation, the employer may wish to consult with an attorney.
Step 6: Notify the Employee
The next step is for the employer to notify the employee in writing that his or her requested accommodation has been approved or denied. Details of the accommodation and the anticipated start date should be included in the notice.
The employer should maintain all copies of accommodation requests, supporting medical information and documentation, including denials, in a file separate from the employee personnel file, consistent with the confidentiality requirements of the FEHA. Specific accommodations that will be made must be documented.
Step 7: Implement Accommodations
As soon as an accommodation has been agreed on, it should then be implemented as quickly as possible.
Step 8: Review and Modify
The accommodation process is not set in stone; it may need to be reviewed, especially if an employee’s disability changes or the needs of the business change.
The employer is advised to collect and analyze data in relation to the accommodation to ensure its effectiveness in allowing the employee to satisfactorily perform the essential functions and requirements of the job.
An employee with more than five years of data entry experience has been working with the organization for six months. Upon hire, she stated she could perform all the essential job duties as outlined in the company job description. Lately, she has been complaining about wrist pain. Her doctor diagnosed her with carpal tunnel syndrome due to the repetitive nature of the job. The doctor recommends that the employee cut back her work hours to prevent her medical condition from worsening. The doctor provided the employee with a note for her employer.
The employee approached her supervisor and asked to work a reduced schedule. After considering the FEHA requirements and company policy and procedure (Steps 1, 2 and 3), the supervisor starts the interactive process (Step 4) by reviewing the employee request, reviewing the essential functions of the position, and consulting with the employee to determine the exact job-related limitations and potential accommodations.
The supervisor recommends the best reasonable accommodation (Step 5), which in this case is a currently available part-time position to which the employee can be reassigned. The employee’s written accommodation request is forwarded to HR for final approval. HR reviews the employee’s request, the doctor’s note and the FEHA definitions of who is a qualified individual with a disability, along with the supervisory recommendation.
HR informs the employee that her request has been approved (Step 6). According to the company’s FEHA disability accommodation policy and procedure, the employee is given a memo documenting the request and approved accommodation. HR files this information and related documentation in a separate FEHA disability accommodation file, which is kept apart from the employee’s personnel file.
An employee who is morbidly obese and has knee problems recently returned to work after taking California Family Care Rights Act (CFRA) leave. She has been released to work without restrictions. Her manager reports performance problems. The employee attributes her performance problems to medication she is taking to walk. In addition, she is taking muscle relaxants and has been unable to sleep more than two hours a night.
The employee is asked to provide documentation from her doctor to support her statements that her disability and its related medications are affecting her at work and to indicate any potential reasonable accommodations. The employee provides a note from her doctor with a recommendation that she be permitted to work from home, allowing her to limit driving and walking. The doctor also asks that the employee’s hours be adjusted.
Even though the employee was initially returned without restrictions, further questions uncovered that an accommodation would be necessary. After reviewing the essential job duties, gap analysis and the accommodation suggestions, the manager and HR agree to allow the employee to work from home and to adjust her work hours. To be consistent with the company telecommuting policy, the employee’s performance will be reviewed within 30 days, and if her performance does not improve, her telecommuting privileges may be revoked.
According to the company’s FEHA disability accommodation policy and procedure, the employee is given a memo documenting the request and approved accommodation. HR files all this information and related documentation in a separate FEHA disability accommodation file, which is kept apart from the employee's personnel file.
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