Reasonable Accommodations in the Workplace – A Crash Course
In addition to reporting on the latest news regarding employment law, we sometimes like to pause and reflect on day-to-day topics that may provide employers with useful reminders about compliance with state and federal law. You may encounter at your workplace a current or future employee with a disability that requires accommodation – do you know how to handle all the ins and outs of this type of issue if you are suddenly confronted with it? Let’s take a brief look at the basic requirements.
The California Fair Employment and Housing Act requires employers of 5 or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship.
What is a Reasonable Accommodation?
Reasonable accommodation can include, but is not limited to, the following:
- Changing job duties
- Providing leave for medical care/appointments
- Changing work schedules
- Relocating the work area
- Providing mechanical or electrical aids
- Providing qualified readers or interpreters
- Restructuring jobs to eliminate non-essential functions
- Acquiring or modifying equipment or devices
- Adjusting or modifying examinations or training materials
- Employees with disabilities may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act.
The “Interactive Process”
Employers must initiate an “interactive process” when an applicant or employee requests reasonable accommodations. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation.
In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. Stated another way, employers must engage in the interactive process when it is triggered. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation.
The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation.
The Department of Fair Employment and Housing has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. The law does not require the use of these or any other forms to make a request for a reasonable accommodation or to engage in an effective, good faith interactive process. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. However, they may be a useful tool for both employers and employees.
Remember, employers cannot inquire about the employee’s actual disability or medical condition. Similarly, with regard to job applicants, it is unlawful to ask an applicant whether she is disabled or about the nature or severity of a disability, or to require the applicant to take a medical examination before making a job offer.
Tips for an Effective Interactive Process
- Be genuine and open: Accommodations are about doing things differently to help overcome disability-related limitations, so keep an open mind when exploring accommodation solutions.
- Invite the requestor to suggest accommodations: The requestor may have some good accommodation ideas but may be hesitant to bring them up without being asked to do so.
- Encourage ongoing communication. For any workplace issue/concern, ongoing communication is the key to success. The same is true for accommodations – employers should encourage employees to communicate any issues they have with their accommodations.
Identifying and Supplying a Reasonable Accommodation
Frequently, when a qualified individual with a disability requests a reasonable accommodation, the appropriate accommodation is obvious. The individual may suggest a reasonable accommodation based upon her own life or work experience. However, when the appropriate accommodation is not readily apparent, you must make a reasonable effort to identify one. The best way to do this is to consult informally with the applicant or employee about potential accommodations that would enable the individual to participate in the application process or perform the essential functions of the job. If this consultation does not identify an appropriate accommodation, you may contact the EEOC, State or local vocational rehabilitation agencies, or State or local organizations representing or providing services to individuals with disabilities. Another resource is the Job Accommodation Network (JAN). JAN is a free consultant service that helps employers make individualized accommodations. The telephone number is 1-800-526-7234.
It is not necessary to provide a reasonable accommodation if doing so would cause an undue hardship. Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation, the employer's size, financial resources and the nature and structure of its operation.
If a particular accommodation would be an undue hardship, you must try to identify another accommodation that will not pose such a hardship. If cost causes the undue hardship, you must also consider whether funding for an accommodation is available from an outside source, such as a vocational rehabilitation agency, and if the cost of providing the accommodation can be offset by state or federal tax credits or deductions. You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.
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If an accommodation is needed in your workplace, employers should always seek legal advice from experts in the field to avoid mistakes along the way – Rosasco Law Group can help!
