Under the ADA and 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:
1. 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.
2. 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.
The employer is not required to create a position. Again, however, it is important for the employer to be aware of what is actually occurring in the workplace. For example, the employer should inquire and consider whether there is a position that will be vacant within a reasonable period of time.
3. 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. Employers will sometimes cursorily conclude that the requested accommodation is too expensive and would cause financial difficulty and therefore is an undue hardship. However, financial difficulty is not enough. There are numerous factors, including cost, that must be considered 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.