Reasonable Accommodation

If you are an employer who employs five or more employees (full time or part time), you are subject to ADA (Americans with Disabilities Act) and FEHA (Fair Employment and Housing Act). This means, among other things, that your qualifying employees with disabilties are entitled to reasonable accommodation. While disability laws at workplace are quite extensive, there are a few basic, and critical things that you, as an employer should know:

* California disability laws at workplace are governed primarily by Cal. Gov. Code 12900 et seq (FEHA).

* The definition of disability under California FEHA is more broad than it is under ADA. Many conditions that might not appear as disabling are disabilities within FEHA. Common examples of such disabilities are: diabetes, asthma, high blood pressure, carpal tunnel, AIDS, and in some cases – obesity. FEHA also protected workers with mental disabilities, which include OCD, ADD, ADHD, Bipolar Disorder, and other serious personality disorder, anxiety and depression.

* An employer has to provide a reasonable accommodation to qualifying disabled employees, if they request an accommodation, or if the employer knows or should know that the employee needs an accommodation. While the employer is not obligated to read an employee’s mind and guess if that employee needs an accommodation, if it appears from an employee’s behavior or appearance that he might need an accommodation, the employer has an obligation to inquire about the need for an accommodation.

* The obligation to provide a reasonable accommodation is a continuing one, and it’s not satisfied by one effort. This means that if a particular accommodation provided is no longer effective, the employer has a duty to consider other accommodations.

* There is no complete or exhaustive list of possible accommodations, and the employers are encouraged to use individual approach and assessment when discussing accommodation and finding solutions to an employee’s disability to ensure that the disabled employee is able to remain part of the workforce.  Possible accommodations include assistive equipment, ergonomic equipment, job restructuring, transfer to a different, vacant position for which the disabled employee is qualified for, modified schedule, partial or full telecommute, and finite disability leave.

* The accommodation provided has to be effective.

* The employer has the right to know at least the basic details about the nature of the disability, symptoms and restrictions of the employee who is requesting an accommodation. Confidentiality and medical privacy are not an excuse for not offering an accommodation to a qualifying disabled employee. Therefore, the employer cannot simply say: “we knew that something was wrong with an employee, but he didn’t tell us, and we didn’t ask because of medical privacy.”

* The employer does not have to
– provide a perfect accommodation but only a reasonable accommodation.
– create a new position in order to accommodate an employee.
– keep the position open indefinitely while the employee is out on disability leave.
– provide perfect accommodation or the exact accommodation that the employee wants.

Call the attorneys at Freiman Law now for a free reasonable accommodation consultation at  (310) 917-1024 or fill out the form below for a free consultation.

By Lawrence Freiman