Disability.jpgPublic agencies are becoming more and more compliant with the obligation under the Americans with Disabilities Act (ADA) and California Fair Employment & Housing Act (FEHA) in conducting the interactive process dialogue with disabled employees to seek reasonable accommodation which will allow the employee to perform the essential functions of their jobs.  Where feasible, jobs can be restructured, duties can be reassigned and modifications to the workplace may be made which allow the employee to perform the essential functions of the job with reasonable accommodation.  In other situations employees who cannot be accommodated in their regular job can be placed in vacant positions for which they are qualified. 

Occasionally, no matter how hard the agency tries, an employee cannot be accommodated and no vacancy exists.  The only option at that point is to sever the relationship with the employee.

Once the interactive process is completed, and assuming no accommodation is available, what procedure must be followed before the employee can be separated?  The answer was provided by the California Court of Appeal in the case entitled Bostean v. Los Angeles Unified School District (1998) 63 Cal.App.4th 95.  In that case the District concluded that its employee, because of medical reasons, could not work.  The District decided to place the employee on unpaid leave of absence.  The Court of Appeal held that, in essence, the District had acted to deprive the employee of a vested right – her pay and benefits – without providing due process of law.  Accordingly, even though the action was non-disciplinary, Bostean was entitled to the equivalent of Skelly rights.  Thus, the District was obligated to provide Bostean with written notice of its intent and its reasons together with the right to respond and other entitlements provided by the Skelly doctrine. 

Accordingly, in situations where a determination has been made, even after an interactive dialogue process, that an employee with a disability cannot be accommodated in any manner, either in their regular job or in a possible vacancy, the agency must provide the Skelly process before removing the employee from employment status.