Both the federal Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) require employers to provide reasonable accommodation for job applicants and employees with actual or perceived physical or mental disabilities.
While the ADA applies to all employers at least 15 employees, California’s FEHA applies to many more employers, with a lowered threshold of five employees. In addition, the FEHA takes a more expansive view of what constitutes a disability for purposes of providing accommodations.
FEHA regulations provide that reasonable accommodations could include, but are not limited to, the following:
- Alterations to existing facilities to make them accessible and usable for people with disabilities
- Job restructuring, modified scheduling, reassignment to an open position, purchasing or modifying equipment, modifying examinations, training materials or policies, use of readers or interpreters or similar accommodations
An employer who directly or indirectly becomes aware of an employee with a disability must initiate an interactive process with the employee that would allow assessment of the job tasks and the limits caused by the disability. This process allows for the necessary exchange of information between the employee and employer to explore whether there are reasonable accommodations available.
Such interactive process might include requesting a medical certification from the employee’s physician. The employer is not entitled to know diagnosis information, but may ask when the disability began, what restrictions are in place, specific accommodations requested or recommended, and the expected duration of the disability. As an example, if a job applicant or employee is blind, but the job involves primarily research and writing all done online, there may be reasonably priced software that would provide voice readouts and braille printouts.
Accommodations are not required if they would cause “undue hardship” to an employer. California law provides that the employer may decline to hire or retain an employee with a disability if, even with reasonable accommodations, the employee is still unable to perform the essential duties of the job or if the employee’s attempt to perform those duties would endanger their health or safety. Importantly, it is the employer’s burden to show that the proposed accommodation or accommodations would be an undue hardship based on the following factors:
- The nature and cost of the accommodation;
- The employer’s ability to pay for the accommodation;
- The type of operations conducted at the facility where the employee or applicant works or would work;
- The impact on the operations of the facility;
- The number of employees and the relationship of the employees’ duties to one another;
- The number, type, and location of the employer’s facilities; and
- The administrative and financial relationship of the facilities to one another.
This area of law is intricately complex with extensive state and federal statutes, regulations, agency action and case law. Every California employer should seek the advice and counsel of an experienced employment lawyer to understand its responsibilities, make personnel decisions within the bounds of state and federal law, and create policies and practices that will comply with the law.