Reasonable Accommodation & Interactive Process

Reasonable Accommodation & Interactive Process

Reasonable Accommodation of Disabilities. The term “reasonable accommodation” includes, but is not limited to:

Providing personal assistants or attendants to help a qualified individual with a disability perform an essential job function
Making existing job facilities used by employees readily accessible to and usable by disabled individuals (this may include providing accessible breakrooms or restrooms, or reserving parking spaces)
Job restructuring
Part-time or modified work schedules
Reassignment to a vacant position for which the individual is qualified
Acquiring or modifying equipment or devices
Modifying examinations, training materials or policies
Providing assistive aids such as qualified readers or interpreters
An unpaid extension of a paid or unpaid leave
Allowing employees to bring assistive animals to the worksite (employers may require that assistive animals be free from offensive odors, housebroken, trained to assist the employee, and that they not endanger the health or safety of anyone in the workplace)
Changing supervisory methods (e.g., dividing complex tasks into smaller parts)
Providing additional training
Permitting an alteration of when and/or how an essential function is performed
Providing an adjustment or modification of examinations, training materials or policies;
Modifying an employer policy
Working from home

Failure to Accommodate. An employee whose request for accommodation is rejected by an employer must make a timely complaint to the appropriate enforcement agency, or the claim is barred. In Cherosky et. al. v. Henderson, an employer refused to provide respiratory protection equipment to several employees. The court ruled that the employees’ lawsuits were properly dismissed because they had not initiated them within the allotted time period from the date the request for accommodation was denied. The Ninth Circuit Court of Appeals distinguished this situation from one in which a chain of related unlawful events of an ongoing unlawful pattern or practice extends the time limits during which an employee can file a claim. Cherosky involves a claim under the federal Rehabilitation Act.

“Perceived” Disabilities and the Interactive Process. An interviewing manager who perceives an otherwise qualified applicant as having a disability cannot reject the applicant without engaging in the “interactive process” that federal and state laws require. Similarly, an employee returning to work with restrictions following a job-related injury may be perceived as disabled by the employer. If so, the employer should not terminate or discipline the employee without the employer and employee engaging in the interactive process.

Obligations of the Employee in the Interactive Process. Employees must cooperate in good faith in the reasonable accommodation process, and provide medical documentation where a disability or need for accommodation is not obvious and the documentation is requested by the employer. Employees must also give their employers information about education or work history that might qualify them for alternative positions.
An employee’s mental or physical condition may prevent him or her from participating in the interactive process; if this happens, it does not constitute a breach of disability laws. Employees who request to bring assistive animals into the workplace may be required to supply a letter from their health care provider of the need for the animal, as well as confirmation that the animal will behave appropriately in the workplace. Within the first two weeks, if the animal is offensive or disruptive at work, the employer may challenge the animal’s fitness for serving the employee.

Attendance and Accommodations. In some cases, regular attendance at work constitutes an essential job function. If an employee cannot attend work on a regular basis in a job that requires face-to-face customer contact, allowing the employee to work from home is not a reasonable accommodation. Regular attendance may be an essential function for jobs that require:

The employee to work as part of a team
Face-to-face interaction with other employees or with clients/customers
On-site use of items and equipment

Exceptions do exist, and employers bear the burden of showing that attendance is an essential function of the particular position at issue.

Extended Disability Leave as a Reasonable Accommodation. Under the ADA and California’s FEHA, California employers must engage in a good-faith interactive process to determine if any necessary accommodations exist for an individual. Employer return to work rules that do not assess the needs of each employee individually are inconsistent with this requirement.

Undue Hardship. You are not required to reasonably accommodate a qualified individual with a disability if you can show that the accommodation would cause an undue hardship. The term “undue hardship” includes any accommodation that is unduly costly, extensive or substantial to you or that would fundamentally alter the nature your business’s operation. The EEOC and the DFEH determine if a particular accommodation imposes an undue hardship on a case-by-case basis. In general, a larger employer is expected to undertake greater efforts and expense to provide accommodation than a smaller employer. If a particular accommodation results in undue hardship, you must provide an alternative accommodation if the alternative is available and does not cause undue hardship. Consider the following factors when you determine if undue hardship exists:

The nature and cost of the accommodation
The overall financial resources of the facility involved in providing the accommodation, the number of people employed at the facility, the effect on the facility’s expenses and resources and any additional impact that the accommodation might have upon the facility’s operation
The type of the facility’s operation, including the composition, structure and functions of the workforce
The availability of state, federal or local tax incentives
The amount of assistance available from other agencies or organizations, including the California Department of Rehabilitation, the U.S. Department of Health and Human Services and other private and public agencies concerned with the physically and mentally disabled
The geographic separateness of the facility involved in providing the accommodation

California’s Amended Disability Regulations require employers to engage in the interactive process before determining that an undue hardship exists. Consider consulting legal counsel prior to making an undue hardship determination.