Disability | Failure to Accommodate
The Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) protect employees from discrimination based on disability. Both laws also require an employer to provide reasonable accommodation to individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. Reasonable accommodations are to be determined by what is known as the "interactive process."
What is a disability?
Not everyone with a medical condition is protected by the law. In order to be protected, a person must have a disability as defined by the law.
A person can show that he or she has a disability in one of three ways:
- A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
- A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
- A person may be disabled if he or she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
What is a reasonable accommodation?
Generally, an accommodation is any change in the work environment that enables an individual with a disability to enjoy equal employment opportunities.
Examples of reasonable accommodation include but are not limited to:
- Changing job duties
- Changing the work shift
- Providing leave for medical care
- Accommodating work schedules
- Relocating the work area
- Providing mechanical or electrical aids (or modifications)
- Providing interpreters or readers
- Acquiring or modifying equipment, furniture or devices
- Restructuring job schedules or responsibilities
- Making facilities accessible to and usable by people with disabilities
What is the interactive process?
When an employee has requested a reasonable accommodation for his or her disability, the employer must engage in an interactive process with the employee to determine what reasonable accommodations are available to assist the employee in being able to successfully perform the essential functions of the job. The interactive process is intended to be a brainstorming session between the employer and employee to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. An employer cannot simply deny an employee's request for a disability accommodation without them engaging in a dialogue to see if there is something which would allow the employee to continue to work. This would constitute a "failure to engage in the interactive process."