The federal Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Its overall purpose is to make American Society more accessible to people with disabilities. In 2008, the ADA Amendments Act (ADAAA) was passed. Its purpose is to broaden the definition of disability, which had been narrowed by U.S. Supreme Court decisions.
Title I of the ADA requires covered employers to provide reasonable accommodations for applicants and employees with disabilities and prohibits discrimination on the basis of disability in all aspects of employment. Reasonable accommodation (RA) includes, for example, restructuring jobs, making work-sites and workstations accessible, modifying schedules, providing services such as interpreters, and modifying equipment and policies. Title I also regulates medical examinations and inquires.
California has a state law similar to the ADA called the Fair Employment and Housing Act (FEHA) and effective January 1, 2001, the FEHA was amended to provide significantly broader protections to employees with disabilities. The amendments include an express declaration that the California statutes are intended to extend beyond the federal ADA: broadening the definition of “disability”, delineating new and different unlawful employment practices arising from certain pre-employment and post-employment inquiries, and prohibiting failure to engage in a timely, good faith, interactive process with the employee to determine a RA for the disability.
The FEHA requires employers of five or more employees to provide RA for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship. RA can include, but is not limited to, the following:
Providing leave for medical care
part-time or modifying work schedules
Relocating the work area
Providing mechanical or electrical aids
making existing facilities readily accessible to and usable by individuals with disabilities
acquisition or modification of equipment or devices
adjustment or modification of examinations, training materials or policies
reassignment to a vacant position (provided the individual meets the minimum qualifications of the classification and can perform the essential functions of the job)
In California, it is unlawful for an employer to fail to engage in a timely, good faith, "interactive process." The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation.
The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for RA.
Employers must initiate an “interactive process” when an applicant or employee requests RA. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation.
The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. The law does not require the use of these or any other forms to make a request for a RA or to engage in an effective, good faith interactive process. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. However, they may be a useful tool for both employers and employees.
Q: Does the ADA or FEHA force employers to hire unqualified individuals with disabilities?
A: No. Applicants who are unqualified for a job cannot claim discrimination under the ADA or FEHA. Under the ADA and the FEHA, to be protected from discrimination in hiring, an individual with a disability must be qualified, which means he or she must meet all requirements for a job and be able to perform its essential functions with or without reasonable accommodations.
Q: If there are several qualified applicants for a job and one has a disability, does the ADA or FEHA requires the employer to hire that person?
A: No. An employer is always free to hire the applicant of its choosing as long as the decision is not based on disability.
Q: Does the ADA or FEHA give job applicants with disabilities advantages over job applicants without disabilities?
A: No. Neither the ADA nor the FEHA give hiring preference to persons with disabilities.
Q: Under the ADA or the FEHA, must employers give people with disabilities special privileges, known as accommodations?
A: RA are intended to ensure that qualified individuals with disabilities have rights in employment equal — not superior — to those of individuals without disabilities. RA can be a modification to a job, work environment or the way work is performed that allows an individual with a disability to apply for a job, perform the essential functions of the job, and enjoy equal access to benefits available to other individuals in the workplace.
Q: Is providing accommodations for people with disabilities under the ADA or FEHA expensive?
A: No. The majority of workers with disabilities do not need accommodations to perform their jobs, and for those who do, the cost is usually minimal. According to the Job Accommodation Network (JAN), a service from the U.S. Department of Labor's Office of Disability Employment Policy, 58% of accommodations cost absolutely nothing to make, while the rest typically cost only $500. Moreover, tax incentives are available to help employers cover the costs of accommodations, as well as modifications required to make their businesses accessible to persons with disabilities.
Q: Does the ADA or the FEHA place a financial burden on small businesses that cannot afford to make accommodations for individuals with disabilities?
A: No. Businesses with fewer than 15 employees are not covered by the employment provisions of the ADA, and employers with fewer than 5 employees are not covered by the FEHA. Moreover, a covered employer does not have to provide a RA that would cause an "undue hardship." Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an organization's size, financial resources and the nature and structure of its operation.
Q: Is the ADA or the FEHA frequently misused by people with vague complaints or diagnoses?
A: No. If an individual files a complaint of discriminatory treatment, denial of accommodation or harassment under the ADA or the FEHA and does not have a condition that meets its definition of disability, the complaint is dismissed. While claims by people with false or minor conditions may get considerable media attention, the reality is that these complaints are usually dismissed.
Q: Does the ADA or the FEHA protect employees who have difficult or rude personalities or are troublemakers?
A: No. Improper behavior in and of itself does not constitute a disability, and having a disability does not excuse employees from performing essential job tasks and following the same conduct standards required of all employees. The courts have consistently ruled that "common sense" conduct standards, such as getting along with co-workers and listening to supervisors, are legitimate job requirements that employers can enforce equally among all employees.
Q: Under the ADA or the FEHA, can an employer ever fire an employee who has a disability?
A: Yes. Employers can fire workers with disabilities under three conditions:
The termination is unrelated to the disability or
The employee does not meet legitimate requirements for the job, such as performance or production standards, with or without a reasonable accommodation or
Because of the employee's disability, he or she poses a direct threat to health or safety in the workplace.
Q: How does an employee request a RA?
A: When an individual decides to RA, the individual or his/her representative must let the employer know that she or he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change.
A request for RA is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual's medical condition meets the ADA definition of "disability," a prerequisite for the individual to be entitled to a RA.
Q: May someone other than the individual with a disability request a RA on behalf of the individual?
A: Yes, a family member, friend, health professional, or other representative may request a RA on behalf of an individual with a disability. Of course, the individual with a disability may refuse to accept an accommodation that is not needed.
Q: Do requests for RA need to be in writing?
A: No. Requests for RA do not need to be in writing. Individuals may request accommodations in conversation or may use any other mode of communication. An employer may choose to write a memorandum or letter confirming the individual's request. Alternatively, an employer may ask the individual to fill out a form or submit the request in written form, but the employer cannot ignore the initial request. An employer also may request reasonable documentation that the individual has an ADA disability and needs a RA.
Q: When should an individual with a disability request a reasonable accommodation?
A: An individual with a disability may request a RA at any time during the application process or during the period of employment. The ADA does not preclude an employee with a disability from requesting a RA because they did not ask for one when applying for a job or after receiving a job offer.
Rather, an individual with a disability should request a RA when she or he knows that there is a workplace barrier that is preventing them, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment. As a practical matter, it may be in an employee's interest to request a RA before performance suffers or conduct problems occur.
Q: What must an employer do after receiving a request for RA?
A: The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate RA. The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of RA is needed.
The exact nature of the dialogue will vary. In many instances, both the disability and the type of accommodation required will be obvious, and thus there may be little or no need to engage in any discussion. In other situations, the employer may need to ask questions concerning the nature of the disability and the individual's functional limitations in order to identify an effective accommodation. While the individual with a disability does not have to be able to specify the precise accommodation, she or he does need to describe the problems posed by the workplace barrier.
Additionally, suggestions from the individual with a disability may assist the employer in determining the type of RA to provide. Where the individual or the employer are not familiar with possible accommodations, there are extensive public and private resources to help the employer identify RA once the specific limitations and workplace barriers have been ascertained.
Q: May an employer ask an individual for documentation when the individual requests RA?
A:: Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which s/he needs a RA. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability, and that the disability necessitates a RA.
Thus, an employer, in response to a request for RA, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a RA.
An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.
In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for RA. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.
As an alternative to requesting documentation, an employer may simply discuss with the person the nature of his/her disability and functional limitations. It would be useful for the employer to make clear to the individual why it is requesting information, i.e., to verify the existence of a disability and the need for a RA. If an individual's disability or need for RA is not obvious, and the employee refuses to provide the reasonable documentation requested by the employer, then the employee is not entitled to RA. On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for RA could result in liability for failure to provide one.
Q: May an employer require an individual to go to a health care professional of the employer's (rather than the employee's) choice for purposes of documenting need for accommodation and disability?
A: Neither the ADA nor the FEHA prevent an employer from requiring an individual to go to an appropriate health professional of the employer's choice if the individual provides insufficient information from their treating physician (or other health care professional) to substantiate that they have a disability and needs a RA.
However, if an individual provides insufficient documentation in response to the employer's initial request, the employer should explain why the documentation is insufficient and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of a disability and explain the need for RA.
Any medical examination conducted by the employer's health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of a disability and the functional limitations that require RA. If an employer requires an employee to go to a health professional of the employer's choice, the employer must pay all costs associated with the visit(s).
Q: Are there situations in which an employer cannot ask for documentation in response to a request for RA?
A: Yes. An employer cannot ask for documentation when: (1) both the disability and the need for RA are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that they have a and needs the RA requested.
Q: Is an employer required to provide the RA that the individual wants?
A: The employer may choose among RAs as long as the chosen accommodation is effective. Thus, as part of the interactive process, the employer may offer alternative suggestions for RAs and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability.
If there are two possible RAs, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment).
Similarly, when there are two or more effective accommodations, the employer may choose the one that is easier to provide. In either situation, the employer does not have to show that it is an undue hardship to provide the more expensive or more difficult accommodation. If more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations."
Q: How quickly must an employer respond to a request for RA?
A: An employer should respond expeditiously to a request for RA. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the RA. Unnecessary delays can result in a violation of the ADA and/or the FEHA.
Q: May an employer require an individual with a disability to accept a RA that they do not want?
A: No. An employer may not require a qualified individual with a disability to accept an accommodation. If, however, an employee needs a RA to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, she or he may not be qualified to remain in the job.
REASONABLE ACCOMMODATION FOR JOB APPLICANTS FAQ:
Q: May an employer ask whether a RA is needed when a job applicant has not asked for one?
A: An employer may tell job applicants what the hiring process involves (e.g., an interview, timed written test, or job demonstration), and may ask applicants whether they will need a RA for this process.
During the hiring process and before a conditional offer is made, an employer generally may not ask an applicant whether she or he needs a RA for the job, except when the employer knows that an applicant has a disability -- either because it is obvious or the applicant has voluntarily disclosed the information -- and could reasonably believe that the applicant will need a RA to perform specific job functions. If the applicant replies that they need a RA, the employer may inquire as to what type.
After a conditional offer of employment is extended, an employer may inquire whether applicants will need reasonable accommodations related to anything connected with the job (i.e., job performance or access to benefits/privileges of the job) as long as all entering employees in the same job category are asked this question.
Q: Does an employer have to provide a RA to a job applicant with a disability even if the employer believes that it will be unable to provide this individual with a RA on the job?
A: Yes. An employer must provide a RA to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship).
Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for RA for the application process, that it will be unable to provide the individual with RA to perform the job.
In many instances, employers will be unable to determine whether an individual needs RA to perform a job based solely on a request for accommodation during the application process. And even if an individual will need RA to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.
REASONABLE ACCOMMODATION RELATED TO THE BENEFITS AND PRIVILEGES OF EMPLOYMENT & FAQ:
The ADA and the FEHA require employers to provide RAs so that employees with disabilities can enjoy the "benefits and privileges of employment" equal to those enjoyed by similarly-situated employees without disabilities.
Benefits and privileges of employment include, but are not limited to, employer-sponsored:
services (e.g., employee assistance programs (EAP's), credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation) and
parties or other social functions (e.g., parties to celebrate retirements and birthdays, and company outings).
If an employee with a disability needs a RA in order to gain access to, and have an equal opportunity to participate in, these benefits and privileges, then the employer must provide the accommodation unless it can show undue hardship.
Q: Does an employer have to provide RA to enable an employee with a disability to have equal access to information communicated in the workplace to non-disabled employees?
A: Yes. Employers provide information to employees through different means, including computers, bulletin boards, mailboxes, posters, and public address systems. Employers must ensure that employees with disabilities have access to information that is provided to other similarly-situated employees without disabilities, regardless of whether they need it to perform their jobs.
Q: Must an employer provide RA so that an employee may attend training programs?
A: Yes. Employers must provide RA (e.g., sign language interpreters; written materials produced in alternative formats, such as braille, large print, or on audio- cassette) that will provide employees with disabilities with an equal opportunity to participate in employer-sponsored training, absent undue hardship. This obligation extends to in-house training, as well as to training provided by an outside entity. Similarly, the employer has an obligation to provide RA whether the training occurs on the employer's premises or elsewhere.
Q: If, as a RA, an employer restructures an employee's job to eliminate some marginal functions, may the employer require the employee to take on other marginal functions that she or he can perform?
A: Yes. An employer may switch the marginal functions of two (or more) employees in order to restructure a job as a RA.
Q: Can an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?
A: No. If an employee with a disability needs additional unpaid leave as a RA, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of their position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of RA.
Q: Does an employer have to hold open an employee's job as a RA?
A: Yes. An employee with a disability who is granted leave as a RA is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship.
If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue their leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position.
Q: Can an employer penalize an employee for work missed during leave taken as a RA?
A: No. To do so would be retaliation for the employee's use of a RA to which they are is entitled under the law. Moreover, such punishment would make the leave an ineffective accommodation, thus making an employer liable for failing to provide a RA.
Q: When an employee requests leave as a RA, may an employer provide an accommodation that requires the employee to remain on the job instead?
A: Yes, if the employer's RA would be effective and eliminate the need for leave. An employer need not provide an employee's preferred accommodation as long as the employer provides an effective accommodation.
Accordingly, in lieu of providing leave, an employer may provide a RA that requires an employee to remain on the job (e.g., reallocation of marginal functions or temporary transfer) as long as it does not interfere with the employee's ability to address the employee's medical needs. The employer is obligated, however, to restore the employee's full duties or to return the employee to their original position once they no longer needs the RA.
Q: How should an employer handle leave for an employee covered by the ADA and/or the FEHA and the Family and Medical Leave Act (FMLA)?
A: An employer should determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take. Under the ADA and the FEHA, an employee who needs leave related to their disability is entitled to such leave if there is no other effective accommodation and the leave will not cause undue hardship. An employer must allow the individual to use any accrued paid leave first, but, if that is insufficient to cover the entire period, then the employer should grant unpaid leave. An employer must continue an employee's health insurance benefits during his/her leave period only if it does so for other employees in a similar leave status.
As for the employee's position, the ADA and the FEHA requires that the employer hold it open while the employee is on leave unless it can show that doing so causes undue hardship. When the employee is ready to return to work, the employer must allow the individual to return to the same position (assuming that there was no undue hardship in holding it open) if the employee is still qualified (i.e., the employee can perform the essential functions of the position with or without RA).
If it is an undue hardship under the ADA or the FEHA to hold open an employee's position during a period of leave, or an employee is no longer qualified to return to his/her original position, then the employer must reassign the employee (absent undue hardship) to a vacant position for which she or he is qualified.
Under the FMLA, an eligible employee is entitled to a maximum of 12 weeks of leave per 12 month period. The FMLA guarantees the right of the employee to return to the same position or to an equivalent one. An employer must allow the individual to use any accrued paid leave first, but if that is insufficient to cover the entire period, then the employer should grant unpaid leave. The FMLA requires an employer to continue the employee's health insurance coverage during the leave period, provided the employee pays his/her share of the premiums.
Q: Must an employer allow an employee with a disability to work a modified or part-time schedule as a RA, absent undue hardship?
A: Yes. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a RA, absent undue hardship, even if it does not provide such schedules for other employees.
Q: How should an employer handle requests for modified or part-time schedules for an employee covered by both the ADA and/or the FEHA and the FMLA?
A: An employer should determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.
Under the ADA and the FEHA, an employee who needs a modified or part-time schedule because of his/her disability is entitled to such a schedule if there is no other effective accommodation and it will not cause undue hardship. If there is undue hardship, the employer must reassign the employee if there is a vacant position for which s/he is qualified and which would allow the employer to grant the modified or part-time schedule (absent undue hardship).
An employee receiving a part-time schedule as a RA is entitled only to the benefits, including health insurance, that other part-time employees receive. Thus, if non- disabled part-time workers are not provided with health insurance, then the employer does not have to provide such coverage to an employee with a disability who is given a part-time schedule as a RA.
Under the FMLA, an eligible employee is entitled to take leave intermittently or on a part-time basis, when medically necessary, until s/he has used up the equivalent of 12 workweeks in a 12- month period. When such leave is foreseeable based on planned medical treatment, an employer may require the employee to temporarily transfer (for the duration of the leave) to an available alternative position, with equivalent pay and benefits, for which the employee is qualified and which better suits his/her reduced hours. An employer always must maintain the employee's existing level of coverage under a group health plan during the period of FMLA leave, provided the employee pays his/her share of the premium.
Q: Is it a RA to modify a workplace policy?
A: Yes. It is a RA to modify a workplace policy when necessitated by an individual's disability-related limitations, absent undue hardship. But, RA only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other employees.
Granting an employee time off from work or an adjusted work schedule as a RA may involve modifying leave or attendance procedures or policies. Furthermore, an employer may be required to provide additional leave to an employee with a disability as a RA in spite of a "no-fault" leave policy, unless the provision of such leave would impose an undue hardship.
In some instances, an employer's refusal to modify a workplace policy, such as a leave or attendance policy, could constitute disparate treatment as well as a failure to provide a RA. For example, an employer may have a policy requiring employees to notify supervisors before 9:00 a.m. if they are unable to report to work. If an employer would excuse an employee from complying with this policy because of emergency hospitalization due to a car accident, then the employer must do the same thing when the emergency hospitalization is due to a disability.
REASSIGNMENT AS A REASONABLE ACCOMMODATION FAQ:
Q: Is reassignment to another position a RA?
A: Yes. The ADA and the FEHA specifically list "reassignment to a vacant position" as a form of RA. This type of RA must be provided to an employee who, because of a disability, can no longer perform the essential functions of their current position, with or without RA, unless the employer can show that it would be an undue hardship.
An employee must be "qualified" for the new position. An employee is "qualified" for a position if they:
satisfies the requisite skill, experience, education, and other job-related requirements of the position, and
can perform the essential functions of the new position, with or without RA. The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.
Q: What is the employer require to do to help the employee become qualified for the reassignment position?
A: There is no obligation for the employer to assist the individual to become qualified. Thus, the employer does not have to provide training so that the employee acquires necessary skills to take a job. The employer, however, would have to provide an employee with a disability who is being reassigned with any training that is normally provided to anyone hired for or transferred to the position.
Q: Are there any requirements that the reassigned position may have to be acceptable as a RA?
A: The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified. Assuming there is more than one vacancy for which the employee is qualified, the employer must place the individual in the position that comes closest to the employee's current position in terms of pay, status, etc.
If it is unclear which position comes closest, the employer should consult with the employee about their preference before determining the position to which the employee will be reassigned. Reassignment does not include giving an employee a promotion. Thus, an employee must compete for any vacant position that would constitute a promotion.
Q: Is a probationary employee entitled to reassignment?
A: Employers cannot deny a reassignment to an employee solely because they are designated as "probationary." An employee with a disability is eligible for reassignment to a new position, regardless of whether they are considered "probationary," as long as the employee adequately performed the essential functions of the position, with or without RA, before the need for a reassignment arose.
The longer the period of time in which an employee has adequately performed the essential functions, with or without RA, the more likely it is that reassignment is appropriate if the employee becomes unable to continue performing the essential functions of the current position due to a disability. If, however, the probationary employee has never adequately performed the essential functions, with or without RA, then they are not entitled to reassignment because they were never "qualified" for the original position. In this situation, the employee is similar to an applicant who applies for a job for which they are not qualified, and then requests reassignment. Applicants are not entitled to reassignment.
Q: Must an employer offer reassignment as a RA if it does not allow any of its employees to transfer from one position to another?
A: Yes. The ADA and the FEHA require employers to provide RAs to individuals with disabilities, including reassignment, even though they are not available to others. Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a disability, unless it could show that the reassignment caused an undue hardship. And, if an employer has a policy prohibiting transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it could show undue hardship.
Q: Is an employer's obligation to offer reassignment to a vacant position limited to those vacancies within an employee's office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area?
A: No. This is true even if the employer has a policy prohibiting transfers from one office, branch, agency, department, facility, personnel system, or geographical area to another. The ADA and the FEHA contains no language limiting the obligation to reassign only to positions within an office, branch, agency, etc. Rather, the extent to which an employer must search for a vacant position will be an issue of undue hardship. If an employee is being reassigned to a different geographical area, the employee must pay for any relocation expenses unless the employer routinely pays such expenses when granting voluntary transfers to other employees.
Q: Does an employer have to notify an employee with a disability about vacant positions, or is it the employee's responsibility to learn what jobs are vacant?
The employer is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time. In order to narrow the search for potential vacancies, the employer, as part of the interactive process, should ask the employee about his/her qualifications and interests. Based on this information, the employer is obligated to inform an employee about vacant positions for which she or he may be eligible as a reassignment.
However, an employee should assist the employer in identifying appropriate vacancies to the extent that the employee has access to information about them. If the employer does not know whether the employee is qualified for a specific position, the employer can discuss with the employee their qualifications. An employer should proceed as expeditiously as possible in determining whether there are appropriate vacancies. The length of this process will vary depending on how quickly an employer can search for and identify whether an appropriate vacant position exists. For a very small employer, this process may take one day; for other employers this process may take several weeks.
When an employer has completed its search, identified whether there are any vacancies (including any positions that will become vacant in a reasonable amount of time), notified the employee of the results, and either offered an appropriate vacancy to the employee or informed him/her that no appropriate vacancies are available, the employer will have fulfilled its obligation.
Q: Does reassignment mean that the employee is permitted to compete for a vacant position?
A: No. Reassignment means that the employee gets the vacant position if they are qualified for it. Otherwise, reassignment would be of little value and would not be implemented as intended.
Q: If an employee is reassigned to a lower level position, must an employer maintain his/her salary from the higher level position?
A: No, unless the employer transfers employees without disabilities to lower level positions and maintains their original salaries.
Q: Must an employer provide a reassignment if it would violate a seniority system?
A: Generally, it will be "unreasonable" to reassign an employee with a disability if doing so would violate the rules of a seniority system. This is true both for collectively bargained seniority systems and those unilaterally imposed by management. Seniority systems governing job placement give employees expectations of consistent, uniform treatment expectations that would be undermined if employers had to make the type of individualized, case-by-case assessment required by the RA process.
However, if there are "special circumstances" that "undermine the employees' expectations of consistent, uniform treatment," it may be a "RA," absent undue hardship, to reassign an employee despite the existence of a seniority system. For example, "special circumstances" may exist where an employer retains the right to alter the seniority system unilaterally, and has exercised that right fairly frequently, thereby lowering employee expectations in the seniority system. In this circumstance, one more exception (i.e., providing the reassignment to an employee with a disability) may not make a difference. Alternatively, a seniority system may contain exceptions, such that one more exception is unlikely to matter. Another possibility is that a seniority system might contain procedures for making exceptions, thus suggesting to employees that seniority does not automatically guarantee access to a specific job.
OTHER REASONABLE ACCOMMODATION ISSUES FAQ:
Q: If an employer has provided one RA, does it have to provide additional RAs requested by an individual with a disability?
A: The duty to provide RA is an ongoing one. Certain individuals require only one RA, while others may need more than one. Still others may need one RA for a period of time, and then at a later date, require another type of RA. If an individual requests multiple RAs, they are entitled only to those accommodations that are necessitated by a disability and that will provide an equal employment opportunity.
An employer must consider each request for RA and determine:
whether the accommodation is needed,
if needed, whether the accommodation would be effective, and
if effective, whether providing the RA would impose an undue hardship. If a RA turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative RA that would not pose an undue hardship. If there is no alternative accommodation, then the employer must attempt to reassign the employee to a vacant position for which s/he is qualified, unless to do so would cause an undue hardship.
Q: Does an employer have to change a person's supervisor as a form of RA?
A: No. An employer does not have to provide an employee with a new supervisor as a RA. Neither the ADA nor the FEHA prohibit an employer from doing so. Furthermore, although an employer is not required to change supervisors, the ADA and/or may require that supervisory methods be altered as a form of RA. Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment.
Q: Does an employer have to allow an employee with a disability to work at home as a RA?
A: An employer must modify its policy concerning where work is performed if such a change is needed as a RA, but only if this accommodation would be effective and would not cause an undue hardship. Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home. There are certain jobs in which the essential functions can only be performed at the work site -- e.g., food server, cashier in a store. For such jobs, allowing an employee to work at home is not effective because it does not enable an employee to perform their essential functions.
Certain considerations may be critical in determining whether a job can be effectively performed at home, including (but not limited to) the employer's ability to adequately supervise the employee and the employee's need to work with certain equipment or tools that cannot be replicated at home. In contrast, employees may be able to perform the essential functions of certain types of jobs at home (e.g., telemarketer, proofreader). For these types of jobs, an employer may deny a request to work at home if it can show that another accommodation would be effective or if working at home will cause undue hardship.
Q: Must an employer withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity?
A: No. An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.
Q: Must an employer provide a RA for an employee with a disability who violated a conduct rule that is job- related for the position in question and consistent with business necessity?
A: An employer must make RA to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship, except where the punishment for the violation is termination. Since RA is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual's disability. Possible RA could include adjustments to starting times, specified breaks, and leave if these accommodations will enable an employee to comply with conduct rules.
Q: Is it a RA to make sure that an employee takes medication as prescribed?
A: No. Medication monitoring is not a RA. Employers have no obligation to monitor medication because doing so does not remove a workplace barrier. Similarly, an employer has no responsibility to monitor an employee's medical treatment or ensure that she or he is receiving appropriate treatment because such treatment does not involve modifying workplace barriers. It may be a form of RA, however, to give an employee a break in order that she or he may take medication, or to grant leave so that an employee may obtain treatment.
Q: Is an employer relieved of its obligation to provide RA for an employee with a disability who fails to take medication, to obtain medical treatment, or to use an assistive device (such as a hearing aid)?
A: No. The ADA and the FEHA require an employer to provide RA to remove workplace barriers, regardless of what effect medication, other medical treatment, or assistive devices may have on an employee's ability to perform the job. However, if an employee with a disability, with or without RA, cannot perform the essential functions of the position or poses a direct threat in the absence of medication, treatment, or an assistive device, then they are unqualified.
Q: Must an employer provide a RA that is needed because of the side effects of medication or treatment related to the disability, or because of symptoms or other medical conditions resulting from the underlying disability?
A: Yes. The side effects caused by the medication that an employee must take because of the disability are limitations resulting from the disability. RA extends to all limitations resulting from a disability.
Q: Must an employer ask whether a RA is needed when an employee has not asked for one?
A: Generally, no. As a general rule, the individual with a disability -- who has the most knowledge about the need for RA -- must inform the employer that an accommodation is needed. However, an employer should initiate the RA interactive process without being asked if the employer:
knows that the employee has a disability,
knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and
knows, or has reason to know, that the disability prevents the employee from requesting a RA. If the individual with a disability states that they do not need a RA, the employer will have fulfilled its obligation.
Q: May an employer tell other employees that an individual is receiving a RA when employees ask questions about a coworker with a disability?
A: No. An employer may not disclose that an employee is receiving a RA because this usually amounts to a disclosure that the individual has a disability. The ADA and the FEHA specifically prohibit the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers.
An employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as "different" or "special" treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer's policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that their privacy would similarly be respected if they found it necessary to ask the employer for some kind of workplace change for personal reasons.
Q: What can an employer do educate its employees about RA laws?
A: Since responding to specific coworker questions may be difficult, employers might find it helpful before such questions are raised to provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA, the FEHA and the FMLA), while also requiring them to protect the privacy of employees. In providing general ADA and FEHA information to employees, an employer may wish to highlight the obligation to provide RA, including the interactive process and different types of RAs, and the statute's confidentiality protections.
Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers. Employers may wish to explore these and other alternatives with unions because they too are bound by the ADA's and the FEHA's confidentiality provisions. Union meetings and bulletin boards may be further avenues for such educational efforts.
As long as there is no coercion by an employer, an employee with a disability may voluntarily choose to disclose to coworkers his/her disability and/or the fact that s/he is receiving a RA.
If you have any further questions or need additional information about reasonable accommodations, or you need legal representation once a request has been made, contact me at (916) 333-4653 or Stephen_Fiegel_ESQ@comcast.net for a FREE confidential consultation to learn more.
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