What does “Reasonable Accommodation” mean and what must Employer’s do to accommodate employee’s disabilities?
As courts have explained, “employers must make reasonable accommodations to disability of an individual unless the employer can demonstrate that doing so would impose an ‘undue hardship.’” Spitzer v. The Good Guys, Inc. (2000) 80 Cal. App. 4th 1376, 1383. The law and its regulations make clear that the term “reasonable accommodation” is to be interpreted flexibly. The law and the regulations clearly contemplate that employers “actively re-structure their way of doing business in order to accommodate the needs of their disabled employees.”
“Reasonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as: . . . job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions.” A finite leave of absence may be a reasonable accommodation under FEHA.
Employees must presented sufficient material facts before a jury in order for the jury to find that the employer failed to provide a reasonable accommodations to the employee, as required by the FEHA.
In order to determine whether reasonable accommodations are available, the employer is required to engage in an interactive process with the employee. The interactive process is required – it is not a permissive obligation on the part of employers. This obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for accommodation.
Courts have explained that “[t]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees” with the goal of “identify[ing] an accommodation that allows the employee to perform the job effectively.”
Under the FEHA, it is an unlawful employment practice “[f]or an employer ... to fail 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 or applicant with a known physical ... disability....” The statute provides an independent basis for liability. Nonetheless, an employer’s duty to accommodate is inextricably linked to its obligation to engage in a timely, good faith discussion with an applicant or employee whom it knows is disabled, and who has requested an accommodation, to determine the extent of the individual’s limitations, before an individual may be deemed unable to work.
Realistically, when an employer is aware of an employee’s disability, the employer’s interest is not in assessing whether the individual’s impairment may legally be considered an “actual disability.” Rather, “[t]he focus of the interactive process centers on employee-employer relationships so that capable employees can remain employed if their medical problems can be accommodated.” Typically, an applicant or employee triggers the employer’s obligation to participate in the interactive process by requesting an accommodation. The Orange County disability discrimination attorneys at Nassiri Law Group strongly encourage employees to make their request in writing when asking the employer to consider your request for a reasonable accommodation.
Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party .
If you or someone you know have been discriminated against at work by your employer based on a disability you have, please call our disability discrimination lawyer today at 949.375.4734. The employment lawyers at Nassiri Law Group will answer your questions and inform you of your rights, so give us a call today.