Employer Obligations Under Disability Laws
By: Nami E. Chun
The laws governing employers’ obligations with respect to disabled employees are complex, and employers should tread carefully when faced with a disability-related request by an employee. The following covers some basic employer obligations under both federal and state laws with regards to disabled employees.
The Americans with Disabilities Act (“ADA”) applies to all employers with 15 or more employees. However, the California Fair Employment and Housing Act (“FEHA,”) which provides broader protection than the ADA, applies to employers with 5 or more employees. Both the ADA and FEHA were enacted to protect employment opportunities for individuals with disabilities. They prohibit discrimination on the basis of disability by employers. They also require employers to make reasonable accommodations to enable disabled individuals to perform their job.
The ADA defines a disability as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment.
Under California’s FEHA, it need only be shown that a condition “limits” (not “substantially limits”) a major life activity. The following are examples of impairments that consistently meet the definition of “disability”: deafness, blindness, intellectual disability (mental retardation,) partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, hepatitis, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.
The individual must also be “qualified” for the position, i.e., possess the requisite skill, experience, and other qualification standards, and be capable of performing the “essential functions” of the position with or without a reasonable accommodation. If the employee or applicant lacks the requisite skill or other job-related requirements, the employer need not make a reasonable accommodation.
Employers must not discriminate against a qualified individual on the basis of a disability in regards to the job application procedures, hiring, advancement, discharge of employees, compensation, job training, and other terms, conditions and privileges of employment.
Acts constituting discrimination include, but are not limited to, the following:
- improper job standards or qualifications
- failing to accommodate disability
- improper preemployment medical exams
- improper preemployment inquiries
Duty to Provide Reasonable Accommodation
Employers must provide “reasonable accommodations” to enable an employee with a known disability to perform a position’s essential functions. Examples of reasonable accommodations include:
- making facilities readily accessible to disabled individuals
- job restructuring
- part-time or modified work schedules
- transfers or reassignments
- modified equipment or devices
- medical leaves of absences
Undue Hardship Exception
The employer’s duty, however, does not extend to accommodations that “would impose an undue hardship on the operation of the business.” Undue hardship is an action requiring significant difficulty or expense when considered in light of the following factors: the nature and cost of the accommodation needed; the overall financial resources of the employer; the overall size of the business; and the type of business operations.
Duty to Engage in Interactive Process
The employee generally has the initial duty to notify the employer of the disability and request a reasonable accommodation. The request for an accommodation need not mention the ADA or use the phrase “reasonable accommodation.” Although it is generally the employee’s duty to request an accommodation, if the employer learns from any other source that the employee has a potential disability, the employer is under a duty to initiate discussions concerning the need for an accommodation.
Once an accommodation has been requested or the employer becomes aware of its necessity, the employer must initiate an informal, interactive process to determine the nature of the accommodation necessary to enable the individual to perform the position’s essential functions. The interactive process requires communication and good faith exploration of possible accommodations between the employer and employee. The duty to accommodate is a continuing duty that is not exhausted by one effort. The obligation continues where the employee asks for a different accommodation, or where the initial accommodation is failing and further accommodation is needed.
Discriminating against, failing to provide reasonable accommodations, or refusing to engage in the interactive process with disabled employees can subject the employer to liability for loss of wages, emotional distress damages, punitive damages, and the plaintiff’s attorneys’ fees and costs.
Nami E. Chun is an Associate with Kring & Chung, LLP’s Irvine, CA office. She can be contacted at (949) 261-7700 or email@example.com.