California law provides broad protections for employees with disabilities. Perhaps most importantly, the law requires most employers to provide workplace accommodations, so that employees with disabilities are able to work. The law also protects employees against disability discrimination and retaliation.
When thinking about disability accommodations, the key considerations are:
- What qualifies as a protected disability
- What constitutes a reasonable accommodation
- Whether the employee with a disability could perform their essential job duties with a reasonable accommodation
- How an employee can engage in the interactive process with their employer in order to get the accommodation they need
What constitutes a protected disability in California?
California law recognizes a broad range of physical and mental conditions that qualify as protected disabilities for most workplaces that employ five or more people. As explained in detail here, physical and mental conditions that limit a major life activity are generally treated as protected disabilities. Moreover, work itself is considered a major life activity under this analysis.
What constitutes a reasonable accommodation?
The Fair Employment and Housing Act (the FEHA) requires employers of five or more people to “make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless doing so would create an “undue hardship”. (CA GOVT § 12940(m)).
In cases that I have handled, reasonable accommodations have included: modifying job duties (such allowing an employee to handle lighter objects in a warehouse, or allowing an employee to work at a station that did not require stair climbing); and modifying work conditions (such as being permitted to work in an office with a door to reduce noise, or being permitted to make trips to the bathroom for morning sickness).
A Leave of Absence can also constitute a reasonable disability accommodation (as put forth below).
Under the FEHA, a “reasonable accommodation” includes:
(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities; and
(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. (CA GOVT § 12926(p)).
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Leave of Absence as a reasonable accommodation
Sometimes, a health condition will necessitate that an employee take a leave of absence from work. Even if that employee does not qualify for CFRA or FMLA leave, they still may be entitled to a leave of absence as a disability accommodation. Moreover, this kind of leave of absence is not limited to 12 weeks, like the CFRA or FMLA are.
For this kind of leave, it is important that the employee can show it is medically foreseeable that they will be able to return to work, and have an indication of when that is likely to occur. I have handled cases where that leave was a year in duration or longer. (“Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation”); Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir.).
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Whether the employee with a disability could perform their essential job duties with a reasonable accommodation.
The employee must show that with a reasonable accommodation, they would be able to perform the “essential functions” of their job. This means that the employee must be able to perform the “fundamental job duties” (however this does not include “marginal functions of the position”). (Gov.C. § 12926(f)).
A job function may be considered essential for several reasons, including:
- Because the reason the position exists is to perform that function;
- Because of the limited number of employees available to perform that function;
- The function may be highly specialized. (Gov.C. § 12926(f)).
To use the examples of the reasonable accommodations I discussed above:
- An employee at a warehouse club retail store should be able to move merchandise by separating it into smaller portions to be loaded in a manner that was less heavy;
- A security guard in a detention center could be stationed at a front entry post, which did not require stair climbing;
- An office employee could be given a workstation in a quiet office, so that her migraine headaches were not aggravated;
- A pregnant employee could be given the ability to use restrooms for morning sickness.
In all of the examples above, the employees would be able to perform the essential functions of their jobs with these accommodations.
What is the interactive process regarding disability accommodation?
The interactive process is the communication between the employee and employer, in order to identify possible disability accommodations.
“Typically, the employee must initiate the process ‘unless the disability and resulting limitations are obvious.’ ” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169).
But once aware of a disability, an employer must consider accommodations even beyond what an employee has specifically requested. (Lin v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 712, 728).
I usually think of the interactive process as like a tennis game, where the ball is hit back and forth. This is the process of communicating proposals and counter-proposals for accommodations. I tell my clients that it is important the ball does not stop in their court, keep the communication going.
If the employer fails to engage in the interactive process and does not accommodate a disability, and a lawsuit is filed by the employee, that employee will need to show that an accommodation would have been possible. (The “employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.’ ”(Shirvanyan v. Los Angeles Community College Dist. (2020) 59 Cal.App.5th 82, 87).
Important takeaways for California employees
California employees should know their rights. If you have a protected disability, you may be entitled to disability accommodations, and protections against disability discrimination and retaliation. If you believe you have been discriminated against or retaliated against based on a disability, or if an employer has refused to accommodate your disability, you can contact employment law attorney Michael Velarde
