California´s disability laws are intended to provide persons with disabilities the opportunity for employment. Protection under California´s Fair Employment and Housing Act (FEHA) is far broader than provided by the federal Americans with Disabilities Act (ADA).
FEHA vs. ADA
To qualify as a disability under FEHA, an impairment need only "limit", not "substantially limit", a major life activity;
When it comes to employees and applicants with disabilities, FEHA generally requires two things of employers:
An employer´s obligation arises when it receives notice that an employee suffers from a disability that impairs job performance. Notice may come from any source including the employee, application for employment, a family member, a co-worker, or the existence of an obvious disability. FEHA prohibits inquiry about a disability unless the employer has objective facts indicating that a medical condition is impairing job performance.
Essential Job Functions
After receiving notice, the employer should carefully evaluate the job´s essential functions. Both FEHA and ADA define "essential functions" in the same way. When determining whether a job function is essential, the following should be taken into consideration:
In the case of an employee returning to work after a leave, fitness for duty certifications may be required under certain circumstances:
All documentation relating to an employees disability must be kept separately and confidentially, as any other medical records, except when a supervisor or manager needs to be informed of restrictions for accommodation purposes or for safety reasons, such as when emergency treatment might be required.
The Interactive Process and Reasonable Accommodation
The interactive process is a dialogue between the employer and a disabled individual to determine whether there is a reasonable accommodation that would enable the employee or applicant to perform the essential functions of the job. State law incorporates guidelines developed by the Equal Employment Opportunity Commission (EEOC) in defining an "interactive process" between the employer and the employee or applicant with a known disability. Critical to this process are the following basic guidelines:
Examples of reasonable accommodations include facility or work area modifications; the purchase of equipment, devices or tools; job restructuring; modified or part-time work schedules; leaves of absence; telecommuting; reassignment of non-essential functions; the hiring of readers, transcriptionists and interpreters; and reassignment to other positions. Work area modifications might include elevators, quiet or private work areas, or workstation configuration changes. Typical equipment requests include ergonomic chairs, modified keyboards, and tools or machines to help with lifting.
An employee must cooperate in the interactive process and cooperation may include responding to the employer´s request for medical information and/or documentation. Although the preferences of the individual in the selection of the accommodation should be considered, the accommodation implemented should be one that is most appropriate for both the employee and the employer.
After exploring accommodation alternatives, the employer should implement a reasonable accommodation that does not impose an undue hardship and evaluate whether the implemented accommodation enables the employee to perform the job. If the accommodation proves ineffective, the employer should consider and implement an alternate reasonable accommodation, if one exists. This process of implementing and evaluating accommodations should continue until either a reasonable accommodation proves effective or all reasonable alternatives have been exhausted. Finally, if no reasonable accommodation exists for the employee''s position, the employer must offer reassignment to any other open position that the employee can perform.
Undue Hardship
As mentioned above, FEHA permits an employer to refuse to accommodate a request for reasonable accommodation when it would present an undue hardship to the operation of the employer´s business. If an employer denies accommodation due to an "undue hardship", it must be able show that the accommodation requires significant difficulty or expense, when considered in the light of the following factors:
Required Steps to Prepare
1. Establish clear accommodation and non-retaliation policies.
2. Train front-line managers to bring disability situations to the attention of human resources and senior management.
3. Establish disability analysis processes (checklists, interview forms, etc.) to ensure a well-documented interactive process.
4. Draft basic job descriptions, including the essential functions of the job.
5. Standardize the method of internal job searching.
6. Research possible accommodations until all possible options have been exhausted.
7. Coordinate ADA/FEHA, FMLA/CFRA, and Workers´ Compensation policies.
8. Explore reasonable accommodation with employees injured at work, regardless of what benefits or training they receive through workers´ compensation.
9. Consider that each accommodation offered sets a precedent.
10. Even if an accommodation may not be required because it is "unreasonable," it may be required if the Company offered it to others outside the protected group.
Conclusion
One of the most complex and poorly understood areas of disability accommodation is related to the hiring process. Hiring managers must understand their obligations and carefully manage the types of questions asked and the accommodation process as it relates to hiring, as well as handling current employees who may become disabled. We highly recommend a section on disabilities and accommodation as part of an annual training regimen for all managers. Not only is this a complex area from a compliance requirement standpoint, but also new cases are decided each year, which impact the employer''s obligations, as well as the interplay between an individual''s privacy, and an employer´s legitimate business needs.