It is illegal for employers to discriminate against workers on the basis of a mental or physical disability under both federal and California state law. This can be confusing because some disabilities may make certain jobs impossible for some workers. In other situations, an employer may be required to provide reasonable accommodations for disabled employees. If you are disabled and want to better understand your rights in the workplace, contact a disability discrimination attorney to discuss what you can do to protect yourself.
Your Rights Under the Law
As mentioned above, disabled workers are protected by both federal and state laws. Specifically, there are two statutes:
- The Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees; and
- The California Fair Employment and Housing Act (FEHA), which applies to employers with as few as 5 employees.
Both of these statutes require employers to provide reasonable accommodations for workers with mental or physical disabilities to apply for employment and perform the essential duties of their jobs unless it would create an undue hardship for the employer. While this may sound simple, there is a lot to unpack when it comes to whether or not your employer must provide a reasonable accommodation.
What is a Reasonable Accommodation?
A reasonable accommodation is an adjustment or modification to the work environment or how the job is performed that would allow a disabled worker to have employment opportunities equal to a non-disabled worker. As a result, employers may be required to provide reasonable accommodations in the application and hiring process as well as in the performance of the job itself. A reasonable accommodation may include the following:
- A flexible or modified work schedule
- Allowing for telework
- Providing a larger monitor for someone with a visual impairment
- Relocating someone in a wheelchair to a workspace with better accessibility
- Creating training materials for use by disabled individuals
- Granting leave for medical care
These are just examples. What may be considered a reasonable accommodation in one case may not necessarily be a reasonable accommodation in another case. In other words, an employer cannot insist that the disabled employee accept an accommodation that was previously granted to another employee if it does not meet that employee’s needs. Every reasonable accommodation must be considered on a case-by-case basis.
Essential Job Duties
An employer is required to provide a reasonable accommodation only if it would allow the employee to perform their essential job duties. Essential job duties include the following:
- The purpose of the employee’s job is to perform that specific duty; or
- There are a limited number of employees who could perform that duty if it were assigned to them; or
- The duty requires a high degree of specialization and the employee was hired for their ability or expertise in performing that specific duty.
It is important to note that the accommodation need not be directly related to the employee’s ability to perform their job. For example, workers need to be able to use the restroom in order to work a full day, and therefore the employer may be required to provide an accessible bathroom for disabled employees.
An employer may decline to provide a reasonable accommodation if they can demonstrate that doing so would create an undue hardship. Undue hardships can include the following:
- The accommodation would be unreasonably expensive or financially burdensome for the employer
- The accommodation would fundamentally alter the operation or nature of the business or otherwise be unreasonably disruptive
- The accommodation could be implemented only with significant difficulty
Whether or not the accommodation would present an undue hardship for the employer should be, again, determined on a case-by-case basis. A variety of factors such as the size and financial resources of the business will determine whether the accommodation presents an undue hardship to the employer.
Employers can also deny a reasonable accommodation if it would present a direct theft to the safety of the employee or others. To meet this exception, the employer must demonstrate the following:
- That the accommodation would present a significant and specific risk of substantial harm;
- That the risk is immediate, not speculative or remote; and
- The assessment of risk is based on medical or other factual evidence.
If all of these criteria are met, employers must then consider whether they can reasonably reduce or eliminate the risk such that the direct threat is alleviated.
An Interactive Process
The ADA and FEHA require employers to initiate an interactive process with the employee in either of two situations:
- The employer receives a request for a reasonable accommodation from the employee; or
- The employer becomes aware of the need for reasonable accommodation for the employee.
To request a reasonable accommodation, you do not necessarily need to know what accommodation you may need. The purpose of the interactive process is for the employer and the employee to work together to find a reasonable accommodation that enables the employee to perform their job duties that can be implemented by the employer.
Employers are also required to initiate the interactive process if they become aware of the need for a reasonable accommodation through their own observation, through a report from a third party, or as a result of other circumstances. The bottom line is that employers can be held liable if they fail to initiate the interactive process once they become aware of the need for a reasonable accommodation.
One of the most common issues with reasonable accommodations is whether the employer can request medical documentation for the disability. The short answer is that employers can request medical documentation to substantiate or clarify the nature of the disability and the extent of the employee’s limitations only for non-obvious disabilities. For example, an employer cannot require medical documentation for a reasonable accommodation related to the fact that an employee uses a wheelchair.
Contact Attorneys for Employees to Discuss Your Right to a Reasonable Accommodation
If your employer is pushing back on your need for a reasonable accommodation, we can help. Contact us today to schedule a consultation and let’s talk about what we can do to protect your right to equal employment opportunities.