September 14, 2014 rhanafi

Failure to Reasonably Accommodate a Disability

Under both the FEHA and the ADA, an employer is obligated to try and accommodate a disabled employee. “Reasonable accommodations” include things like making existing facilities usable by individuals with disabilities, job restructuring, part time or modified work schedules, reassignment to a vacant position, providing employees with ergonomic devices, speech to text software, time off to recover, and so on. Employers and employees are encouraged to get creative. The employer is not required to pick the accommodation preferred by the employee, nor is the employer required to undertake anything that would constitute an “undue hardship.”

The first step in figuring out whether your employer can reasonably accommodate you is figuring out the “essential functions” of your job. This is an important legal term that you will hear a lot if you pursue a failure to accommodate or failure to engage in the interactive process claim. The critical legal question in your failure to accommodate case is whether you can perform the essential functions of your position, with or without an accommodation. You do not need to perform them immediately, since time off to recover is often a perfectly reasonable accommodation. Nor should you accept an unreasonable characterization of the essential functions of your job beyond those you see on a daily basis.  Department of Fair Employment and Housing (DFEH) Guidelines provide the following guidance for determining the essential functions of the position:

When determining whether a job function is essential, the following should be taken into consideration: (1) the position exists to perform that function; (2) there are a limited number of employees available to whom the job function can be distributed; or (3) the function is highly specialized. Evidence of whether a particular function is essential includes the employer’s judgment as to which functions are essential; a written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; the terms of a collective bargaining agreement; the work experiences of past incumbents in
the job; or the current work experience of incumbents in similar jobs.

The employee is typically not involved in the process of determining the essential function. (I had one particularly egregious case where the employer tried to make the employee agree in writing to changed essential functions for the position while the employee was disabled.)  Usually this is predetermined (or at least, employers claim it is) and the issue is one of many that gets litigated in disability discrimination and wrongful termination cases.

The next step is figuring out your reasonable accommodation. This is a case by case process that should occur during the interactive process, and ideally the employee is as involved in this process as the employer. Time off, assistive technology, or even a simple solution like providing an assembly line worker a chair are all things that can be considered.

I sometimes come across employers who tell employees they do not do certain things for employees as a “policy.” This is a mistake. The process of determining whether you can be reasonably accommodated has to be an individualized process. That means there is no cookie cutter approach. Your specific situation needs to be considered.

If you think you have not been reasonably accommodated, or you are in the midst of requesting a reasonable accommodation and need some help, contact me.