This article was originally published in February 2014. The information has been reviewed and is up-to-date as of August 2021.
Under the federal Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA), the employer has the duty to identify and implement a reasonable accommodation to allow a disabled employee to perform the essential functions of the job. Common pitfalls for employers in determining appropriate accommodations are:
- Over-reliance on the written job description
Job descriptions are critical in the disability interactive process for identifying the essential functions of the job. This is one reason why we repeatedly urge employers to update job descriptions. However, the employer should refrain from over-relying on the written job description for identifying the essential functions without considering what is actually occurring in the workplace. For instance, a written job description for a parks maintenance worker may list removal of trees as an essential job function and state that this function requires the worker to use a heavy piece of equipment such as a wood chipper. However, in practice the maintenance workers may have only removed one tree in the last several years. So this essential function may not be essential after all. This is a fact specific determination that should be made on a case-by case basis. The important thing for the employer to do when determining the essential functions is to make the relevant inquiries of incumbents and supervisors for the job position and consider how the job is currently being performed.
- Failure to consider leave of absence or telework as an accommodation
A leave of absence may constitute a reasonable accommodation especially where it could rehabilitate a disabled employee well enough for him or her to be able to return to work, even if the employee has exhausted leave allowance. The employer, however, cannot require an unpaid leave of absence if the employee can work with a reasonable accommodation. The employer is also not required to provide an indefinite leave of absence as a reasonable accommodation.
Further, since the pandemic, employers have found that telework has become feasible for more job positions as a possible reasonable accommodation. If the job position lends itself to telework, this is another possible temporary accommodation to consider.
- Failure to recognize employer’s ongoing obligation to engage in the interactive process
In general, it is the responsibility of the individual with a disability to notify the employer that he or she needs an accommodation, and initiate the reasonable accommodation interactive process. However, even in the absence of such notification, the employer must inquire whether an employee with a known disability is in need of a reasonable accommodation. Awareness of a potential need for accommodation could be imputed to the employer from such sources as a physician’s note or conduct observed by co-workers, and thus trigger the employer’s duty to engage in the interactive process. Importantly, once a reasonable accommodation is agreed upon, that does not end the employer’s obligation to engage in the interactive process. The accommodation provided should be reviewed periodically to ensure that it is still reasonable and remains effective in allowing the employee to perform the essential functions of the job.
- Failure to consider all vacant positions for reassignment
Reassignment to a vacant position should be considered in these circumstances: (1) accommodation within the individual’s current position would pose an undue hardship; (2) the employee can no longer perform the essential functions of the current position even with accommodation; (3) if both the employer and employee agree that reassignment is preferable; or (4) if the employee so requests.
The employee with a disability is entitled to preferential consideration for assignment to a vacant position over other applicants and incumbent in-house candidates, unless doing so would violate a bona fide seniority system.
- Failure to analyze the undue hardship defense thoroughly
Undue hardship is an ADA and FEHA defense to the employer’s obligation to provide reasonable accommodation to a disabled employee. The employer must affirmatively show that a requested accommodation creates an undue hardship. While the employer may consider the impact of an accommodation on the ability of other employees to do their jobs, the employer may not claim undue hardship solely because providing an accommodation has a negative impact on other employees, such as triggering accusations or complaints that the disabled employee is receiving “special treatment.” Employers will sometimes also cursorily conclude that the requested accommodation is too expensive and would cause financial difficulty and therefore is an undue hardship. However, financial difficulty per se is not enough. There are numerous factors, including cost, which must be evaluated in the context of each employer (e.g., cost vs. the employer’s budget or financial ability), when evaluating an undue hardship defense. Employers should review all the ADA and FEHA factors and carefully analyze whether a requested accommodation would cause undue hardship. Keep in mind that hardship is not enough to justify denying accommodations. The hardship must be “undue.” The hardship must create a significant difficulty or expense to the employer. In enacting the ADA and FEHA requirements, Congress and the California legislature intended that some hardships must be shouldered by employers in order to accommodate disabled employees and applicants.