Archives for July 2, 2020

Long before the COVID-19 pandemic forced many businesses to implement teleworking, employers were required to provide such accommodations to its disabled and pregnancy-disabled employees so long as it did not impose an “undue hardship” on the employer. Unfortunately, some employers have been too quick to deny such a request from its disabled employees in the past, which begs the question – why was it so easy for them to implement teleworking for their able-bodied employees? And if it could suddenly implement teleworking for its entire workforce, what other accommodations has it been wrongfully denying? These employers could potentially be liable for their failures to accommodate their disabled employees.

California’s Fair Employment and Housing Act (“FEHA”) prohibits employers from discriminating against applicants and employees with actual or perceived physical or mental disabilities, including pregnancy-related disabilities. Furthermore, employers have an affirmative duty to provide reasonable accommodations for the known disabilities of its employees and to engage in an interactive process with employees to determine what accommodations are needed and which can be provided. An employer may only deny requested accommodations if it would require significant difficulty or expense. Going forward, it is going to be much more difficult for employers to deny accommodation requests from disabled employees.

What is a Disability under FEHA?

Disabilities are broadly defined under FEHA and include:

• Any mental or psychological disorder or condition, such as an intellectual disability, emotional or mental illness, or specific learning disability, that makes a major life activity, such as working, more difficult to achieve; or
• Any physiological disease, disorder, or condition that affects a bodily system such as neurological, immunological, musculoskeletal, special sense organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, and makes a major life activity, such as working, more difficult to achieve; or
• Any condition related to pregnancy or childbirth, or a related medical condition if, in the opinion of her health care provider, the condition makes the person unable to perform any of the essential functions of her job without undue risk to herself, to her pregnancy’s successful completion, or to other persons.

Examples of physical disabilities include deafness, blindness, partially or completely missing limbs, mobility impairments, cerebral palsy, HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis, and heart and circulatory disease. Examples of mental disabilities include autism spectrum disorders, schizophrenia, clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive-compulsive disorder. Examples of pregnancy disabilities

include severe morning sickness, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy, and recovery from childbirth, loss or end of pregnancy.

Disability does not, however, include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or substance abuse disorders and typically does not cover mild conditions such as the common cold, seasonal or common flu, minor cuts, sprains, muscle aches, soreness, bruises, or abrasions, non-migraine headaches, and minor and non-chronic gastrointestinal disorders.

What Must An Employer Do To Accommodate Disabled Employees?

Employers are required to provide reasonable accommodations for the known disabilities of their employees. Essentially, a reasonable accommodation is any change to the work environment or to the way a job is typically done that will enable a disabled employee to perform the essential functions of their job. Employers must consider any and all accommodations that it is aware of or that are brought to its attention by the applicant or employee. Examples of accommodations include:

• Teleworking;
• Leaves of absences, even after all protected leave has been exhausted;
• Modified work schedules or offering part-time work;
• Acquiring or modifying equipment or devices and providing assistive aids such as qualified readers or interpreters;
• Making existing facilities readily accessible;
• Allowing assistive animals;
• Transferring to a vacant position or a more accessible worksite;
• Job restructuring such as reallocation or redistribution of certain job functions and altering when or how certain job functions are performed;
• Adjusting or modifying examinations, trainings, policies, or supervisory methods; and
• Providing additional training.

Additionally, for pregnancy-disabled employees, accommodations may also include permitting more frequent breaks, providing furniture (e.g., stools or chairs), providing a reasonable amount of break time and use of a room or other location close to the employee’s work area to lactate in private, and temporary reassignment to a less strenuous or hazardous position or to less strenuous or hazardous duties. Employers are not, however, required to eliminate any essential job duties, lower quality or quantity standards, or create new positions for disabled employees.

Employers may only deny a disabled employee’s accommodation request if the accommodation would impose an undue hardship on the employer. But before an employer can do so, it must first engage in an interactive process with the employee.

What is the Interactive Process?

The interactive process is an individualized assessment of the job at issue and the specific disability-related limitations of the employee that are directly related to the need for accommodation. An employer is required to initiate the interactive process if an employee with a known disability requests accommodations, the employer otherwise becomes aware of the employee’s need for an accommodation through a third party or by observation, or the employer becomes aware of the possible need for an accommodation because the employee with a disability has exhausted all available leave.

The interactive process must be in good faith and timely. The employer must either grant the accommodation request or reject it after due consideration and discuss possible alternatives. This involves identifying potential accommodations and assessing the effectiveness each would have in enabling the employee to perform the essential function of their job. An employer may request medical documentation to support the need for accommodation, though it may not ask about the underlying medical cause of the disability. An employer may also request clarification of medical documentation and consult experts.

In the end, an employer may only deny an accommodation if, after engaging in this interactive process, it determines that the requested accommodation would impose an “undue hardship” – meaning the accommodation would require significant difficulty or expense considering factors such as the availability of tax credits and deductions and/or outside funding, the overall financial resources of the company, the number of employees and number, type, and location of its facilities, and the impact on operations. This is a very high burden to prove.

What To Do if You Believe Your Rights are Being Violated

It is important to know that your employer cannot discriminate against you based on your disability, including pregnancy, and cannot retaliate against you for requesting disability-related accommodations. If you are disabled and believe your employer has violated your rights, you may be able to hold them legally accountable. The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law. Contact us online or call (619) 342-8000 to learn more about how we may be able to support your claim.