Most businesses in California have a duty to provide reasonable accommodations for their employees with known disabilities, unless doing so would cause the employer an undue hardship.1
A reasonable accommodation is a change to an employee’s job duties or work environment that can help give them the ability to perform the essential functions of the position.2 Common examples of accommodations include:
- Rearranging the employee’s work space to make it accessible for people with disabilities.3
- Permitting the employee time off to see a medical professional.4
- Permitting an employee to work from home.5
- Changing the time in which the duties of the employee’s position must be completed.
- Allowing the employee to bring an assistive animal to the workplace.6
There are, of course, many other types of accommodations to which an employee may have a right—several of which are listed in the article below. The most appropriate type of accommodation will depend on the employee’s specific situation.
There are important caveats to these rules, which this article explains in greater detail below.
- 1 The Employer’s Duty to Accommodate
- 2 The Definition of “Disability” under California Law
- 3 Examples of Reasonable Accommodations
- 4 Requesting a Reasonable Accommodation
- 5 How to Handle Violations
The Employer’s Duty to Accommodate
The general rule is that employers who know of an employee’s disability have an affirmative duty to make reasonable accommodations for the disability.11 In other words, employers must make reasonable efforts to determine the appropriate accommodation and integrate an employee with disabilities.
The law also requires that employers communicate and engage in what is called an interactive process with their disabled employees about possible reasonable accommodations.12
This duty can sometimes arise even if the employee has not requested any accommodation—if, for example, the employer becomes aware of the need for accommodation through someone else or by observation.13 As such, these rules place a heavy burden on employers.
In essence, employers must accommodate their employee’s disability if:
- The employer knows of the disability,
- The accommodation is reasonable, and
- The accommodation will enable the employee to perform their essential job functions.
Many of these concepts have specific legal meanings. So we will explain them further here.
What is required once the employer knows of the disability?
An employer can become aware of an employee’s disability in many different ways. The health condition can be visible or the employee may inform the employer.
Once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation represents an undue hardship.14
When the employer knows of the disability, they must enter into an “interactive process” with the employee to determine an appropriate accommodation.15 The interactive process required by California law is an informal process with the employee (or their employee’s representative), in which the employer attempts to identify a reasonable accommodation that will enable the employee to perform the job effectively.16
The interactive process requires employers to make reasonable efforts to determine the appropriate accommodation by consulting with the employee. Employers must also give consideration to their preference.17
When a disabled employee requests it, the employer must respond in good faith and in a timely manner to the request.18
The first step of the above stated interactive process is determining the essential functions of the position.
Which job functions are considered essential?
Employees must be able to perform their essential job functions with the accommodation. An employer is permitted to discriminate or fire an employee with a disability if, after being given a reasonable accommodation, they still are unable to perform the job’s essential functions.19
A court will look at several factors to determine if a job function is essential, including:
- Whether the reason the position exists is to perform that function.
- Whether the employer has a limited number of employees to which that function can be distributed.
- Whether that function is highly specialized.20
An employee or employer can show whether a job function is essential with evidence. Examples of which include the following:
- An accurate and current written job description,
- The amount of time spent on the job performing the function,
- The legitimate business consequences of not performing the job,
- The work experience of past employees in the job,
- The current work experience of employee,s in similar jobs, and
- Reference to the importance of the performance of the job function in prior performance reviews.21
When is an accommodation reasonable?
An accommodation is reasonable when adjustments are made so that employees with disabilities can perform the essential functions of their job,22 unless the employer can demonstrate that granting the accommodation creates an undue hardship to the business operation.23
An employer is subject to an undue hardship if the accommodation would require significant difficulty or expense.24 Courts will use the following factors to determine whether an undue hardship exists:
- The nature and cost of the accommodation, taking into consideration the availability of tax credits and deductions and/or outside funding;
- The overall financial resources of the facility providing the accommodation, including the impact on other employees’ ability to perform their duties and the facility’s ability to conduct business;
- The overall size of the business with respect to the number of employees, and the number, type and location of the facility providing the accommodation;
- The type of operations, including the composition, structure and functions of its workforce; and
- The geographic separateness, administrative, or fiscal relationship of the facility.25
If the accommodation would present an undue hardship to the operation of the employer’s business, an employer can legally refuse to accommodate a request for reasonable accommodation from an employee.
An applicant with a speech impairment is employed by a small call center that has only five other employees. The applicant requires assistance to talk on the phone by having another employee present at all times.
The business in question would likely not have to provide the accommodation if it could not afford the cost of the additional staff.
Essentially, whether an accommodation is reasonable in a particular case includes an analysis of the specific circumstances, including the cost of the accommodation and the employer’s ability to pay for it.
The Definition of “Disability” under California Law
Employers are not required to accommodate every medical condition. To receive the protection of California reasonable accommodation laws, the condition must qualify as a disability. Fortunately, the definition of “disability” covers individuals with a broad range of conditions.
Courts will interpret the phrase “major life activity” broadly.28 Major life activities include social activities, basic life functions (walking, eating, sleeping, etc.), working, physical activities, and mental activities.29
Disabilities that require accommodations generally fall into two main categories: physical disabilities and mental disabilities.30
Physical disabilities are perhaps the most common type of condition. An employee has a physical disability if:
- They have any bodily condition, cosmetic disfigurement, or anatomical loss that affects one or more of the body’s major systems.31
- They have any health impairment that requires special education or related services;
- They have a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment; or
- Their employer mistakenly believes that the worker has or had a physical disability or medical condition.32
When determining whether a person has a physical disability, an employer usually cannot take into consideration any medication or assistive device—such as wheelchairs or hearing aids—that an employee may use to accommodate the disability. If, however, these devices limit a major life activity, they should be taken into consideration.
Under this definition, physical disabilities may include arthritis, back and spinal pain, carpal tunnel syndrome, chronic migraines, diabetes, epilepsy, hypertension and high blood pressure among others.
Mental or Psychological Disabilities
Mental or Psychological disabilities include, but are not limited to:
- Intellectual disabilities;
- Emotional or mental illness; and
- Specific learning disabilities, that limit a major life activity.33
Under this definition, mental or psychological disabilities may include depression, attention deficit disorder, bipolar disorder, and anxiety among others.34
Conditions Not Covered
It is important to note that physical and mental disabilities do not include:
- Sexual behavior disorders;
- Compulsive gambling, kleptomania, pyromania or
- Illegal Psychoactive substance use.35
Moreover, California state workers who have marijuana prescriptions or recommendations are not entitled to legal protection for marijuana use.36
Examples of Reasonable Accommodations
Whether an accommodation is reasonable is decided on a case-by-case basis, with the needs of the particular position in mind.37 Some examples of possible accommodations include the following:
- Allowing an employee to take time off from work for doctor’s or therapist’s appointments;38
- Allowing an employee, a flexible work schedule so they may work more hours on good days and fewer hours when necessary;39
- Restructuring the job description to eliminate non-essential functions;40
- Providing a wheelchair accessible work site, a sign language interpreter, or braille materials;41
- Purchasing or modifying equipment to accommodate employee’s medical condition;42
- Making facilities readily accessible to and usable by disabled individuals (e.g., providing accessible break rooms, restrooms, training rooms or reserved parking places);43
- Reassignment to a vacant position;44
- Allowing applicants or employees to bring assistive animals to the work site;45
- Adjusting or modifying examinations, training materials, or policies (for example, educating and reshaping co-worker attitudes).46
Requesting a Reasonable Accommodation
In some cases, employers are legally-required to proactively offer disabled employees a reasonable accommodation, even if the employee has made no request for an accommodation.47 However, in many other cases the employee has the responsibility to initiate the process by requesting reasonable accommodations.48
If an employee needs an accommodation, it is often advisable to provide a written notice to their employer that does the following:
- Tells the employer that the employee has a disability,
- Explains how the disability interferes with their job functions, and
- Explains which accommodations are needed in order to perform the job’s essential functions.
Although the request can be made orally, it is almost always better to put the request in writing and to keep a copy of the notice so there is a record of it.
What documentation can an employer request?
The employee must be able to provide the employer with a list of restrictions that must be met to accommodate him or her.51 But this request for documentation does not entitle the employer to seek the employee’s entire medical record.52
Things to Consider Before Making a Request
- Employees should first thoroughly discuss their disability with their doctor to understand what their medical limitations are, and what they imply in the workplace.
- Although it is customary that the employee and employer will communicate directly with each other, certain unusual circumstances may justify requiring employer to communicate through a third party.53
- Some employers have an employee handbook. If one exists, employees should review it and follow any guidelines in it to request a reasonable accommodation.
- The employer does not have to provide the exact requested accommodation, but must have meaningful discussions with the employee about what will work and what is reasonable.54
- The employer may select a less expensive alternative as long as it is appropriate and meets the employee’s needs.55
- Employees should work diligently and in good faith to find a reasonable accommodation that allows the performance of all essential functions of job.56
Employers Cannot Disclose the Disability
Although the employee may be required to provide documentation of their disability, they still have a right to privacy.
If the employee chooses to remain private about their condition, the only people who should know about the employee’s disability are managers or supervisors who require knowledge of the illness to meet the employee’s work restrictions, or first aid and safety personnel.57
Any other disclosure of the employee’s medical information is unlawful. Medical information and records obtained as part of the interactive process must be maintained separate from the employee’s personnel file and kept confidential.58
Furthermore, it is unlawful for the employer or any other person to harass the employee because of the employee’s medical condition, physical disability, or mental disability. The employer must also make reasonable efforts to prevent harassment from occurring or can be responsible for financial damages.59
Retaliation is Prohibited
Employees are often worried about the consequences of disclosing a disability and asking for reasonable accommodations. But it is important to understand that both California and federal employment laws protect individuals who request accommodations for their disability.
Retaliation is strictly prohibited.60 Even if the employee’s requested accommodation is ultimately denied, an employer may not retaliate or discriminate against an employee for requesting the accommodation.61
Employers who wrongfully terminate or take adverse action against their employees can be liable for any financial or emotional harm they cause.62
Some common examples of unlawful retaliation and discrimination are wrongful termination, reducing an employee’s working hours, unjustified poor performance reviews, or any other attempt to force job resignation.
If an employee feels that they have been retaliated against or discriminated against because of their disability or medical condition, it is a good idea to speak with a California employment attorney about their particular situation.
How to Handle Violations
If an employee (or a job applicant) believes they have been discriminated against or denied reasonable accommodation for their disability, they have several options:
- Consider discussing the issue with an attorney to determine the best approach for their specific situation.
- Try to resolve the dispute informally with the immediate supervisor or someone higher up the chain of command.
- Contact the employer’s human resource representative or the person in charge of accommodation issues.
- File a formal complaint against the employer with an administrative agency—or, if that doesn’t work out, file a lawsuit in court.
It is important that an employee or job applicant keep in mind that there are strict deadlines they need to meet to file a complaint. In most cases it must be filed within one year from the date of harm.63
Of course, the best way to resolve a failure-to-accommodate dispute will depend on the employee’s specific situation. It’s usually a good idea to get the opinion of a lawyer before deciding how to proceed.
Gov’t Code, § 12940, subd. (m)(1) [“It is an unlawful employment practice . . . [f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.”].Footnote 1
Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.Footnote 2
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(A).Footnote 3
Cal. Code Regs., tit. 2, §§ 11065, subd. (p)(2)(M), 11068, subd. (c).Footnote 4
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(L).Footnote 5
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(B).Footnote 6
Gov’t Code, § 12940, subd. (m)(1) [making it unlawful for “an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.”].Footnote 7
Gov’t Code, § 12940, subd. (a).Footnote 8
Known as the Fair Employment and Housing Act, or “FEHA.”Footnote 9
Gov’t Code, § 12926, subd. (d) [“‘Employer’ includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows: ‘Employer’ does not include a religious association or corporation not organized for private profit.”].Footnote 10
Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–951 [employer had an affirmative duty to offer other job opportunities once it knew about the employee’s disability].Footnote 11
Cal. Code of Regs., tit. 2, § 11068, subd. (a).Footnote 12
Prilliman v. United Air Lines, Inc. (1997) 53 Cal.Aapp.4th 935, 949–950.Footnote 13
Cal. Code of Regs., tit. 2, §§ 11065, subd. (r), 11068, subds. (a), (e).Footnote 14
Cal. Gov’t Code, § 12940, subd. (n); Cal. Code Regs., tit. 2, § 11069.Footnote 15
Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.Footnote 16
Cal. Code of Regs., tit. 2, § 11068, subd. (e).Footnote 17
Cal. Code Regs., tit. 2, § 11069, subd. (a); Gov’t Code, § 12940, subd. (n) [making it unlawful for an employer to “fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”].Footnote 18
Gov’t Code, § 12940, subd. (a)(1) [“This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations . . . .].Footnote 19
Gov’t Code, § 12926, subd. (f)(1); Cal. Code Regs., tit. 2, § 11065, subd. (e)(1)(A); Lui v. San Francisco (2012) 211 Cal.App.4th 962, 972.Footnote 20
Cal. Code of Regs., tit. 2, § 11065, subd. (e).Footnote 21
Gov’t Code, § 12940, subd. (m).Footnote 22
Cal. Code Regs., tit. 2, § 11068 , subd. (a) [“An employer or other covered entity has an affirmative duty to make reasonable accommodation(s) for the disability of any individual applicant or employee if the employer or other covered entity knows of the disability, unless the employer or other covered entity can demonstrate, after engaging in the interactive process, that the accommodation would impose an undue hardship.”].Footnote 23
Cal. Gov’t Code § 12926, subd. (u) [“‘Undue hardship’ means an action requiring significant difficulty or expense . . . .”].Footnote 24
Cal. Gov’t Code § 12926, subd. (u); Cal. Code Regs., tit. 2, § 11065, subd. (r) [“‘Undue hardship’ means, with respect to the provision of an accommodation, an action requiring significant difficulty or expense incurred by an employer or other covered entity, when considered under the totality of the circumstances in light of the following factors: . . . .”].Footnote 25
Gov’t Code, § 12926, subds. (j), (m); Cal. Code Regs., tit. 2, § 11065, subds. (d)(1), (2).Footnote 26
Gov’t Code, § 12926, subds. (j)(1)(B) [“A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.”], (m)(1)(B)(ii) [“A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.’].Footnote 27
Gov’t Code, § 12926, subd. (m)(1)(B)(iii).Footnote 28
Gov’t Code, § 12926, subd. (m)(1)(B)(iii) [“‘Major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.”]; Cal. Code Regs., tit. 2, § 11065, subd. (l)(1).Footnote 29
Gov’t Code, § 12940, subd. (m)(1) [“It is an unlawful employment practice . . . [f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.”].Footnote 30
Gov’t Code, § 12926, subd. (m)(1); Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584; Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1026.Footnote 31
Gov’t Code, § 12926, subd. (m).Footnote 32
Gov’t Code, § 12926, subd. (j); Cal. Code Regs., tit. 2, § 11065, subd. (d)(1).Footnote 33
Gov’t Code, § 12926, subd. (j); Cal. Code Regs., tit. 2, § 11065, subd. (d)(1).Footnote 34
Gov’t Code, § 12926, subd. (j)(5); Cal. Code Regs., tit. 2, § 11065, subds. (d)(9)(A) [“‘Disability’ does not include: . . . compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs, and ‘sexual behavior disorders’ . . . .”], (q).Footnote 35
Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 926 [“The FEHA does not require employers to accommodate the use of illegal drugs.”].Footnote 36
Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. 11 [“the reasonableness of an accommodation is generally a factual question”].Footnote 37
Cal. Code of Regs., tit. 2, § 11065, subd. (g)Footnote 38
42 U.S.C. § 12111(9); Cal. Gov’t Code, § 12926, subd. (p).Footnote 39
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(E).Footnote 40
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(A).Footnote 41
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(A).Footnote 42
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(E).Footnote 43
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(N).Footnote 44
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(B).Footnote 45
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(H).Footnote 46
Prilliman v. United Air Lines, Inc. (1997) 53 Cal.Aapp.4th 935, 949–950.Footnote 47
Gov’t Code, § 12940, subd. (n).Footnote 48
Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1013; Cal. Code Regs., tit. 2, § 11069, subd. (b).Footnote 49
Cal. Code Regs., tit. 2, § 11069, subd. (d) [“The applicant or employee shall cooperate in good faith with the employer or other covered entity, including providing reasonable medical documentation where the disability or the need for accommodation is not obvious and is requested by the employer or other covered entity . . . .”].Footnote 50
Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266 [“It is an employee’s responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.”].Footnote 51
Gov’t Code, § 12940, subds. (e)(1), (f); Cal. Code of Regs., tit. 2, § 11071, subds. (a), (b), (d).Footnote 52
See, e.g., Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 247–248.Footnote 53
Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228 [“[T]he employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” (Quotation marks omitted.)], quoting Hankins v. The Gap, Inc. (6th Cir. 1996) 84 F.3d 797, 800–801.Footnote 54
Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228Footnote 55
Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.Footnote 56
Cal. Code of Regs., tit. 2 § 11069, subd. (g).Footnote 57
Cal. Code of Regs., tit. 2 § 11069, subd. (g).Footnote 58
Cal. Gov’t Code, § 12940, subd. (j)(1); Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.Footnote 59
Gov’t Code § 12940, subd. (l)(4).Footnote 60
Gov’t Code § 12940, subd. (l)(4).Footnote 61
Gov’t Code, § 12940, subds. (h), (l)(4); Cal. Code of Regs., tit. 2, § 11021, subd. (a); Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 923.Footnote 62
Gov’t Code, § 12960, subd. (d).Footnote 63