Properly accommodating an employee’s disability can be tricky. The Nuddleman Law Firm, P.C. understands the rights and obligations of employers and employees and helps individuals and companies with workplace disability accommodations.
The Americans with Disabilities Act Regulations and the Fair Employment and Housing Act Disability Regulations prohibit discrimination on the basis of “disability.” Disability discrimination laws help disabled persons stay employed. Employers have an affirmative duty to provide reasonable accommodations to disabled workers. Determining what accommodations can help a disabled person perform the essential functions of the job is frequently misunderstood.
Employers and employees should ask themselves, “what can we do to help this person succeed?” While this is a good idea in any number of situations, the ADA and FEHA require employers to ask this question for its employees with disabilities.
What is a Disability?
A “disability” under FEHA and the ADA is interpreted broadly. It includes “mental” disabilities, “physical” disabilities and “special education” disabilities, as well as certain medical conditions and genetic characteristics. A “disability” can also include “being regarded, perceived, or treated by the employer” as having or having had a disability.
Although there are some limitations for short-term conditions such as colds, minor cuts, sprains, etc., just about any other medical condition that limits one or more major life activities will qualify as a disability.
What is an Employer’s Responsibility When an Employee Asks for a Disability Accommodation?
An employee does not need to use any magic words in order to trigger an employer’s obligation to provide a reasonable accommodation, but the employer must have knowledge that an employee’s disability requires an accommodation. Most commonly, the employee will ask for a modification, an assistive device, or some other accommodation. The employer must then work with an employee to determine what accommodations are reasonable and will enable the employee to perform the essential functions of the job.
This interactive process is not one-sided. Both the employer and the employee must engage in good faith discussions and evaluations to determine what modifications are appropriate for the employer and employee. Employers must consider all reasonable accommodations, but an employer is not necessarily required to provide the disability accommodations the employee requests provided another accommodation will enable the employee to perform the essential functions of the job.
The essential question an employer should ask is: how can we help the person succeed?
What are the Essential Job Functions?
Analyzing what accommodations are appropriate begins with the essential functions of the job. Not every job requirement is necessarily essential. “Essential job functions” means the fundamental job duties of the employment position the applicant or employee with a disability holds or desires. They do not include marginal functions of the position.
A good job description will list the essential job functions. Some collective bargaining agreements or memorandums of understanding will include the essential job functions. In the absence of a job description, essential job functions may also be referenced in prior performance reviews or by examining the work performed by other people in the same position.
Does an Employee Need to Disclose His/Her Medical Condition in Order to Obtain a Reasonable Accommodation?
Employees have a right to privacy with regard to their medical conditions. Although employers may need to know how an employee’s medical condition limits his/her ability to perform the essential functions of the job so that the employer can evaluate the company’s ability to accommodate the disability, the employee does not need to grant access to his/her entire medical file. The employee does need to provide sufficient information to enable the employer to determine the employee has a disability, and to evaluate what possible accommodations will help the employee perform his/her job.
What Kinds of Accommodations are Reasonable?
A reasonable accommodation is any modifications or adjustments that are effective in enabling:
- An applicant with a disability to have an equal opportunity to be considered for a desired job, or
- An employee to perform the essential functions of the job the employee holds or desires, or
- An employee with a disability to enjoy equivalent benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.
Reasonable accommodation may include, but are not limited to, such measures as:
- Making existing facilities used by applicants and employees readily accessible to and usable by individuals with disabilities. This may include, but is not limited to:
- providing accessible break rooms, restrooms, training rooms, or reserved parking places
- acquiring or modifying furniture, equipment or devices
- making other similar adjustments in the work environment
- Allowing applicants or employees to bring assistive animals to the work site
- Transferring an employee to a more accessible worksite
- Providing assistive aids and services such as qualified readers or interpreters to an applicant or employee
- Job Restructuring. This may include, but is not limited to:
- reallocation or redistribution of non-essential job functions in a job with multiple responsibilities
- Providing a part-time or modified work schedule
- Permitting an alteration of when and/or how an essential function is performed
- Providing an adjustment or modification of examinations, training materials or policies;
- Modifying an employer policy
- Modifying supervisory methods (e.g., dividing complex tasks into smaller parts)
- Providing additional training
- Permitting an employee to work from home
- Providing a paid or unpaid leave for treatment and recovery
- Providing a reassignment to a vacant position
- Other similar accommodations.
Hire a Knowledgeable Disability Discrimination Attorney to Assist You
Robert Nuddleman has been helping employers and employees with the interactive process since he began practicing law. He has litigated numerous cases under the Americans with Disabilities Act and California’s Fair Employment and Housing Act. Robert frequently provides training to employers, employee groups, human resource professionals and other attorneys regarding employer and employee rights and responsibilities with regard to employees and applicants with disabilities.
Contact the Nuddleman Law Firm if you have questions about disability discrimination laws.