Two Common Scenarios: An employee gets injured and is on leave. You have taken all necessary precautions with respect to making sure all proper notifications pertaining to leave were provided and the employee has cooperated and submitted all necessary medical certifications including a clearance to return to work. However, there’s one hitch, the medical clearance indicates that the employee is required to be on light duty for a period of time or in the alternative has been diagnosed with a medical condition that requires a modification to his or her work routine. What are your responsibilities and rights when faced with these situations?
ADA/FEHA The two main statutes that will govern a California employer’s actions when faced with a returning employee claiming a work limitation due to a physical disability are the federal American With Disabilities Act (“ADA”) and the state Fair Employment and Housing Act (“FEHA”). Both are very similar with only minor differences.
ADA versus the FEHA:- Under the ADA a physical or mental impairment must “substantially limit” a major life activity in order to qualify for protection. In California FEHA only requires that an employee demonstrate a physical or mental disability which “limits” a major life activity. Therefore, under FEHA an employee receives broader protections than under the federal scheme.
- FEHA applies to temporary or transient conditions because they need only “limit” not “substantially limit” a major life activity.
- The ADA applies to all employers with 15 or more employees on each working day in each of 20 or more calendar weeks in the current or preceding calendar year; however, FEHA applies to any company with 5 or more employees.
Reasonable Accommodation Required: Under both the ADA and FEHA employers are mandated to make reasonable accommodations for the known disabilities of employees to enable them to perform a position’s essential functions, unless doing so would produce undue hardship to the employer’s operations. Unlike the ADA, under FEHA an employer has an affirmative duty to take steps to provide a reasonable accommodation for a disability and cannot wait for an employee to make the request. A supervisor is considered the agent of the employer and the failure to inform the appropriate individuals within the company that a charge is in need of an accommodation is a violation of FEHA. In other words, the failure of a supervisor to spot and report on an employee who may need an accommodation can create a legal liability on the part of the employer.
Types of Reasonable Accommodations:- Making facilities accessible to and usable by disabled individuals;
- Job restructuring;
- Offering part-time or modified work schedules;
- Reassigning to a vacant position;
- Acquiring or modifying equipment or devices;
- Adjusting or modifying examinations, training materials or policies;
- Providing qualified readers or interpreters;
- Providing for extended leave (not indefinite);
- Drug and alcohol rehabilitation if voluntarily requested by employee; and
- Other similar accommodations for individuals with disabilities.
What is Not Considered Reasonable:- Employer need not accommodate medically prescribed marijuana;
- Employer need not create a new position; and
- Employer need not promote the individual.
Interactive Process Required: Under both the ADA and FEHA an employer is required to engage in an interactive process with the particular employee when the employee raises the issue. However, FEHA makes it the responsibility of the employer to notice a disability affecting the employee’s work performance thereby placing the burden on the employer be proactive and not wait for the employee to raise the issue. The law does require the employee cooperate in good faith with the employer throughout the interactive process, including providing information that may be important in order to explore accommodations. This may include a list of limitations or restrictions. The more restrictions the fewer accommodation options that may be available.
Undue Hardship: If an employer can demonstrate that accommodating the employee’s disability would cause an undue hardship on its operations, the accommodation is not required. Factors considered include:
- Nature and cost of the accommodation needed;
- Overall financial resources of the facilities involved, the number of persons employed at the facility and the effect on expenses and resources or the accommodation’s impact on the operations of the facility;
- Overall resources of the covered entity, the overall size of the business with respect to the number of employees, and the number, type and location of the covered entity’s facilities;
- Type of operations of the employer entity, including the composition, structure and functions of its workforce; and
- Geographic separateness, administrative or fiscal relationship of the facility or facilities involved.
Recommendations: In order to best protect your company from disability discrimination claims it is highly recommended that an employer do the following:
- Adequately train all supervisors and managers to observe and notify HR if they suspect an employee’s performance is being affected by a disability;
- Be proactive in dealing with an employee who may be suffering from a disability;
- Commence an interactive process with any employee claiming a disability or observed to be affected by one; and
- Document the interactive process including any analysis of undue hardship.
About the Author: Michael J. Goldfarb, Esq., has been a licensed attorney in California since 1993, focusing on employment law, he is the President of Holman HR (a national HR consulting firm) and has extensively advised all types of business across the United States in the area of employment law and HR compliance.
