Meagan Bainbridge and Ryan Abernethy break down reasonable accommodations under the ADA and FEHA. Learn what employers need to know about handling requests and engaging in the interactive process in this installment of California Employment News.

Watch this episode on the Weintraub YouTube channel.

Meagan:

Hello, everyone. Thank you for joining us for this installment of the California Employment News, an informative video and podcast resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Megan Bainbridge, and I’m a shareholder in the firm’s Labor and Employment Group, and today I’m joined by my partner, Ryan Abernethy. A few months ago, Ryan and I spoke to you about the various leave laws that California employers need to be aware of, namely the Federal Family Medical Leave Act and California’s Family Rights Act. Today, we want to delve into a related but separate issue, reasonable accommodations. Ryan, why don’t you start us off with a review of the ADA and what it tells us about reasonable accommodations?

Ryan:

Sure. Well, thanks, Megan. We often tell our clients that employee medical leave requests are one of the most complex issues California employers face. This is because even if an employee doesn’t qualify for FMLA, CFRA, PDL leave, or workers’ compensation, or their leave under those statuses has already expired, employers may still be legally required to reasonably accommodate additional medical leave requests under the Americans with Disabilities Act or the ADA, or a California’s equivalent of the ADA, which is called the Fair Employment Housing Act or the FHA. We’ll refer to the ADA and FHA interchangeably today to the extent they cross over. The ADA and FHA don’t just apply to employees’ medical leave requests. Under these statutes, Companies with as few as five or more employees are required to provide any and all reasonable accommodations for their employees with a physical or mental disability to apply for jobs or to perform the essential functions of their jobs unless it would cause undue hardship to the company. Employers also have a duty to engage in what’s called the interactive process with their employees, which is basically to explore what accommodations may be provided. A reasonable accommodation could include virtually anything, such as changing an employee’s job duties, relocating their work areas, or providing mechanical or electrical aids to the employees of disabilities.

Megan will cover this in greater detail momentarily. It’s always good to know what the costs are for non-compliance with some of these statutes, and non-compliance with the ADA can actually be very hefty. Employers who violate the ADA can be sued by their employees and required to pay employees past and future lost earnings, their pain and suffering, and punitive damages, as well as their attorney’s fees. So Megan, why don’t you tell us some more about the ADA?

Meagan:

Yeah. So first, it’s important to understand that each request for a reasonable accommodation must be considered on a case-by-case basis. That means that the employee or applicant and employer must work together to determine whether there’s a solution that might allow the employee or applicant to perform the essential functions of their job duties. There is no one-size-fits-all solution to these discussions. That said, the first step is likely that an employee or applicant discloses a disability or the employer otherwise gains knowledge of a potential disability. While employers shouldn’t focus too much on what qualifies as a disability, this generally means that the employee has a physical or mental impairment that substantially limits one or more major life activity. Employers should seek to verify medical condition meets the ADA general definition of a disability and what restrictions pertains to the employee through a medical certification. Next, the employer and employee should engage in a dialog to determine what modifications or adjustments to the work environment will enable that applicant or employee with a disability to participate in the application process or to perform the essential job functions. This is what’s generally known as the interactive process, and it could include many things, as Ryan just mentioned.

It could include buying equipment to accommodate a disability or increase accessibility to a computer or the workplace or something along those lines. It could include job restructuring or other alterations to a work schedule such as part-time work, remote work, that thing. It could include an unpaid leave of absence. It could include reassignment to a vacate position. It could include a wide array of things that employers should consider. As Ryan mentioned, employers have a duty to provide these reasonable accommodations unless doing so would impose an undue hardship. This means that the company would experience significant difficulty or expense by making the appropriate accommodations. Some important factors that consider this determination are the true cost of the accommodations that have been requested to be provided and the size of the business, such as the number of employees or its financial resources. Larger companies are going to be expected to provide more of an expense than some smaller employers might be required. It’s going to depend on how the business is structured and what type of work the company performs. All of these resources have to be considered, and then a determination is made whether the accommodation request is actually an undue burden.

Finally, it’s a frequent assumption that once an accommodation is granted, it’s permanent. However, because the reasonable accommodation process is interactive, it can evolve home even after the approval stage and is subject to review or change at any point. The accommodation may have been tied to a temporary medical need and, therefore, expired. The medical needs of the employer applicant may change, or the accommodation may not work as intended. In any case, the employee and the employer should once again engage in the interactive process to review alternatives when the need arises. Ryan, what tips do you have for employers who are engaging in the interactive process?

Ryan:

There are actually several steps employers can take to ensure that they’re meeting the interactive process obligations. The first common one we see is that employers are often unaware of what might trigger their requirement to engage in the interactive process. This usually follows an actual employee request for a validation. But it could also be triggered by a supervisor noticing that an employee is having difficulty performing essential job functions or meeting performance goals due to an apparent medical condition. Second, employer should keep documentation validation of all discussions with the employee made during the interactive process. When discussions stop, employer should make sure to document if the ball was in the employee’s court and that they stopped communicating or how the employee’s demand was found to be unreasonable by the company. Third, since the interactive process revolves around whether the employee can perform the essential functions of his or her job, the employee should have a pre-existing document that contains a list of all the employee’s essential job functions. Otherwise, Otherwise, it could appear that the employer is manufacturing nonexistent duties after the fact. So essential duties can include anything from the specific amount of weight that an employee is required to carry to how long the employee is expected to sit or stand.

It’s also important to include whether in-person attendance is required since medical accommodation requests often include a request by employees to work remotely from home.

Meagan:

Those are great tips, Ryan. Thanks. And that does it for today. Thank you for joining us. You can continue to find News on our blog at www.thelelawblog.com and wherever you listen to your favorite podcast. We’ll see you next time.