Employees with disabilities are often entitled to a reasonable accommodation at their job. A "reasonable accommodation" is a change in the way an employee performs their work that: (1) is compatible with the employee's disability, and (2) allows the employee to accomplish all of the essential functions of the job.

By requiring many employers to accommodate their employee's disability, the law protects the dignity and livelihood of workers. Reasonable accommodations are also necessary to ensure that California employers do not discriminate against employees who have medical conditions, whether mental or physical. Importantly, these rules also protect job applicants. This article provides an overview of the law as it relates reasonable accommodations and disabled employees.

The legal background.

Employment laws under both state and federal law require many employers accommodate an employee’s disability if it would not cause the employer undue hardship. ((Gov’t Code, § 12940, subd. (m); 42 U.S.C. § 12112, subd. (b)(5)(A).)) Disability law in this context is primarily governed by two sets of laws: California's Fair Employment and Housing Act ((Gov't Code, § 12900–12996.)) (also called "FEHA" ) and the federal Americans with Disabilities Act ((42 U.S.C. § 12101, et seq.)) (called the "ADA" ). The California legislature, however, has made it clear that FEHA is intended to provide employees with even more protections than the ADA. ((Gov't Code, § 12926.1.)) FEHA also gives employees more favorable definitions, rules, and remedies than the ADA. Because FEHA provides broader protections for employees, it is the primary law that employees should look to in analyzing their legal rights.

When are employers required to provide an accommodation?

Employers are required to accommodate their employee's disability if:

• The accommodation is reasonable.
• With the accommodation, the employee can perform their essential job functions.
• The employer knows of the disability.
• And the employer is a "covered" entity, as explained below.

If the employer determines that the employee cannot be reasonably accommodated, the employer must engage in an interactive process with the employee to be sure that no accommodation would be reasonable. ((Cal. Code of Regs., tit. 2, § 11068, subd. (a).)) Employers have an affirmative duty to provide the accommodation if it meets these criteria. ((Id.)) This places a heavy burden on employers that refuse to accommodate their employee's disabilities.

When is an accommodation reasonable?

Essentially, an accommodation is reasonable if it allows the employee to perform all essential duties of the position and it does not create an undue hardship for the employer. ((Gov't Code, §§ 12940, subd. (m).)) An employer suffers from an undue hardship if the accommodation would require significant difficulty or expense. ((Gov't Code, § 12926, subd. (t).)) Courts will consider five factors in determining whether the hardship creates significant difficulty or expense:

• The nature and cost of the accommodation needed.
• The size and resources of the facility providing the accommodation.
• The size and resources of the business providing the accommodation.
• The type of operations, including the composition, structure, and functions of the workforce of the entity.
• And the geographic separateness, administrative, or fiscal relationship of the facility or facilities.

When is an employee legally disabled? (With examples.)

Any medical or physical condition that limits a major life activity and makes it difficult for the employee to work can be considered a disability. ((Gov't Code, § 12926, subd. (l)(1)(B)(ii); Cal. Code of Regs., tit. 2, § 11065, subd. (d).)) These often include temporary illnesses. Employers may also have to accommodate a residual effect of a disability. Many medical conditions are considered a disability in the workplace. The most common medical issues are listed below.

Pregnancy.

• Pregnancy and childbirth related medical conditions that result in difficulty at work. ((Gov't Code, § 12945, subd. (a)(3)(A).))

Physical injury or pain.

• Back and spinal pain or injuries.
• Carpal tunnel syndrome.
• Hand or wrist injury.
• Leg or joint paint.
• Chronic or recurring migraines.
• Arthritis.
• Asthma.
• Chronic pain.
• Diabetes.
• Epilepsy.
• Hypertension and high blood pressure.
• Kidney disease.
• Seizures.

Psychiatric or mental impairments.

• Depression.
• Post-traumatic stress syndrome.
• Bipolar disorder.
• Anxiety.

Alcohol and substance abuse.

Specific drug or alcohol substance use treatment issues must be accommodated in some circumstances. Employers are not, however, legally required to accommodate the use of illegal drugs within the workplace. California state workers who have marijuana “cards” are not entitled to legal protection for marijuana use. ((Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 926.))

What job functions are "essential"?

Employees must be able to perform their essential job functions with the accommodation. Courts look at a number of facts in each case to determine if a job function is essential, including:

• Does the employee's position exist to perform that function?
• Are there a limited number of employees to which that function can be distributed?
• Is the function highly specialized? ((Gov't Code, § 12926, subd. (f); Cal. Code of Regs., tit. 2, § 11065, subd. (e).))

To prove whether a job function is essential, employees or employers can bring evidence of a written job description provided to new applicants, the amount of time spent on the job performing the function, he legitimate business consequences of not performing the job, reference to the importance of the performance of the job function in prior performance reviews, and other kinds of evidence.

Which employers are "covered" and required to provide an accommodation?

Reasonable accommodation requirements under California's law, the Fair Employment and Housing Act, apply to employers with five or more employees. ((Gov't Code, § 12926, subd. (d).)) The more restrictive federal law, the American's with Disabilities Act, only applies to employers with fifteen or more employees. ((42 U.S.C. § 12111, subd. (5)(A).))

What are some examples of a reasonable accommodation?

Courts look at accommodations on a case-by-case basis by considering the needs of the particular position. So, reasonable accommodations can vary greatly from job to job. Common reasonable accommodations may include:

• Taking time off to rest or recuperate.
• Having a modified part-time work schedule. ((42 U.S.C. § 12111, subd. (9); Gov't Code, § 12926, subd. (o).))
• Purchasing or modifying equipment to accommodate your medical condition. Federal law requires an employer to pay for any reasonable accommodation. (For example: ergonomic chairs, desks, keyboards, or adjustable monitors.)
• Reassignment to a vacant position.
• Allowing applicants or employees to bring assistive animals to the work site.
• Restructuring or modifying marginal job functions that cannot be performed because of the disability.
• Or modifying facilities and workplace environments to increase accessibility for disabled individuals.

How should I begin the process of requesting a reasonable accommodation at my workplace?

In some circumstances, employers are required to offer disabled employees a reasonable accommodation, even if the employee has made no request for an accommodation. Nevertheless, it is a good idea for employees to take the initiative and request a reasonable accommodation from their employer. ((Gov't Code, § 12940, subd. (n); Claudio v. Regents of the Univ. of Cal. (2005) 134 Cal.App.4th 224.))

Before making a request for a reasonable accommodation, employees should be sure to review their employee handbook (if one exists) and follow any procedures or guidelines in it to request a reasonable accommodation.

It's also important for employees to speak with the doctor to understand their medical limitations. This can help the employee accurately assess their needs. Based on that information, they can give their employer a list of accommodations based on the doctor's substantiated assessment of their medical condition. The following accommodations can be requested:

• Modified work schedule to minimize strain on the employee's body.
• Flexible leave policies to permit doctor visits when necessary.
• New workplace equipment that will help you complete your essential tasks.
• Physical workplace modifications.

Employees should also submit their request for a reasonable accommodation in writing. An email or letter is best, but employees should make sure to keep a copy for themselves.

Sometimes, employees will have trouble notifying their employer. In these situations, it's a good idea to have a family member or friend to notify the employer.

It's also critically important for employees to work diligently and in good faith to find a reasonable accommodation that allows the performance of all essential functions of job.

Can my employer retaliate against me if I ask for a reasonable accommodation?

Absolutely not. Many disabled employees are understandably concerned about reprisals that might result in their termination or loss of other employment benefits if they request a work accommodation. Fortunately, both California and federal employment laws protect individuals who request accommodations for their disability. Employers who wrongfully terminate or take adverse action against their disabled workers can be liable for any financial or emotional harm they cause.

Can my employer harass me or tell the rest of my co-workers about my disability?

It is unlawful for your employer or any other person to harass you because of your medical condition, disability or mental disability. ((Gov't Code, § 12940, subd. (j)(1); see also Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.)) The only people who should know about your disabilities are managers or supervisors who require knowledge of your illness to meet your work restrictions. ((42 U.S.C. § 12112, subd. (d)(3)(B).)) Any other disclosure of your medical information is unlawful. Your employer must make reasonable efforts to prevent harassment from occurring or possibly be responsible for significant financial damages.

If you are the victim of harassment because of your disability, you should attempt to resolve the matter by following the procedures in your employee handbook, speaking with the perpetrator or if necessary, reporting the matter in writing to your supervisor, and consulting an attorney.

What should I do if my employer is not giving me an effective reasonable accommodation or is discriminating against me?

Unfortunately, some employers only pretend to comply with the law before they discriminate against their disabled workers. If your employer is not earnestly attempting to accommodate your medical condition, you may have a legal claim. The most common examples of illegal disability discrimination are:

• Wrongful termination or employment.
• Reduced working hours.
• Unjustified or false poor performance reviews.
• Harassing and bullying of disabled employees in an attempt to force job resignation.
• And workplace threats or denial of future promotions.

If you feel that you have been retaliated against or discriminated against because of your medical condition, it is important that you speak to a Los Angeles and Orange County employment lawyer. Petronelli Law Group, PC is available at (949) 954-8181 to determine your legal options. All consultations are confidential and free of charge.