Discrimination: disability requires reasonable accommodations
Attorney Joe Richardson with Legal Learning on details of the California Fair Employment and Housing Act
The law requires an employee with a disability and the employer must interact to find solutions
Key sections of the Fair Employment and Housing Act (California Government Code Section 12940 et. seq.), a California discrimination statute, deal with disability.
§ 12940 (n) requires employers to “engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee.”
There are no “magic words” to start the process, and the employer is obligated to participate once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate concerns, and make available information to the other party that is more accessible to one of them. Over the years, the statute has expanded so that it can be invoked even in some Worker’s Compensation situations.
§ 12940 (m) requires employers to provide a reasonable accommodation to an employee with a disability, unless doing so would be an “undue burden” on the employer. The interactive process is supposed to ensure that a reasonable accommodation is identified that carefully considers the employee’s disability but does not ignore the employer’s capability to accommodate at the same time.
Thoughts for employees
Employers should actively communicate with the employer about any disability that could affect the ability to do their job. The employee should also make clear their desire to return to work when they have been out because of a disability. There are cases where an employee was judged to be in bad faith (in the eyes of the courts) when the desire to return to work is discussed with doctors but not with the employer, and the employer terminates in the meantime.
Thoughts for employers
Employers must be proactive about participating in the interactive process in good faith when a disability is identified, even to the point of initiating the process when a disability is known. Also, the employer must be aware of the intersection between Worker’s Compensation claims its employees may have and how those issues can invoke FEHA liability. Also, providing an accommodation is still an obligation, so employers need to be proactive about identifying ways to accommodate an employee. Should accommodation be an undue burden, documentation should demonstrate that every potential accommodation has been considered, and discussed with the employee, to ensure the good faith nature of the interactive process.