The Americans with Disabilities Act (ADA) is a Federal law that prohibits private sector employers from discriminating against persons who have disabilities. The ADA also requires employers to provide reasonable accommodation to qualified employees with disabilities unless the employer can demonstrate to do so would create an undue hardship.
California also has its own law that addresses persons with disabilities and employment. This law is the California Fair Employment and Housing Act (FEHA). FEHA requires the same except – unlike ADA which applies only to employers with 15 or more employees – FEHA applies to employers with 5 or more employees. Given the number of small businesses in and throughout the Los Angeles metro area, this distinction matters.
Many clients have questions about FEHA, reasonable accommodation, and the interactive process. At Sirmabekian Law Firm, PC, we believe an informed client makes better decisions for themselves. Here, we answer common questions, like:
- How prevalent are disability claims in California?
- What does FEHA say about employer duties?
- What does reasonable accommodation mean?
- What is undue hardship according to FEHA?
- What is FEHA's interactive process?
- Who should I contact in Los Angeles if I'm disabled and believe I have been discriminated in the workplace?
If you have more specific questions that need answers, contact us today for a free consultation.
According to the U.S. Equal Employment Opportunity Commission (EEOC), California’s disability claims are some of the highest in the country. In 2016, disability charges in California constituted 6.8% of all disability claims in the United States, and of all the discriminatory actions taken in California, 32.6% of them were discrimination based on disability as opposed to discrimination based on things like sex, gender, race, ethnicity, among other protected classes. The last statistic increased slightly in 2019 to 33.4% of all EEOC claims.
Further, according to the California Department of Fair Employment and Housing (DFEH), employment-based discrimination was second only to age discrimination in employment actions. The most recent data, from 2017, disability claims constituted 16% of all employment-based discrimination charges in California. There are many protected classes that a discrimination claim can be based on, and so 16% is a large chunk of the cases, making disability claims in employment discrimination cases quite prevalent.
Under FEHA, employers in California have an affirmative duty to provide reasonable accommodation for an applicant or employer who has a disability. This obligation must be met unless the employee participates in an interactive process and can show that the accommodation would impose an undue hardship.
A reasonable accommodation is the result of an employer making modifications or adjustments to the work environment to allow the employee to perform the essential duties of his or her job.
Many accommodations require only minimal costs and changes while others can be expensive. Accommodations usually take on four different forms:
- physical changes
- accessible and assistive technologies
- accessible communications
- policy enhancements.
Examples of these types of accommodations include:
- adding a ramp
- modifying a restroom
- providing screen reader software
- using videophones for deaf employees
- providing sign language interpreters at meetings
- providing materials in Braille
- modifying a policy to allow service animals
- adjust work schedule to allow employees to attend medical appointments.
FEHA defines undue hardship as
an action requiring significant difficulty or expense.
To determine whether an accommodation poses a significant difficulty or expense, factors like the following are considered:
- the nature and cost of the accommodation;
- the employer’s ability to pay for the accommodation;
- the type of operations conducted at the facility;
- the impact on the operations of the facility;
- the number of employees and the relationship of the employees’ duties to one another;
- the number, type, and location of the employer’s facilities; and
- the geographic, administrative, and financial relationship of the facilities to one another.
A cost-benefit analysis alone cannot be the determining factor. According to EEOC v. Placer ARC, a 2015 California case, undue hardship includes
reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.
Further, hardships that are hypothetical in nature are not enough to support an undue hardship claim.
FEHA’s interactive process is a process where the employer (a manager, supervisor, or other personnel) and the employee discuss the disability to determine what the employer must do to appropriately accommodate the employee. The interactive process must be initiated when triggered by a situation that makes it known to the employer the employee needs an accommodation. Examples include:
- Verbal or written notice by the employee with a disability.
- An employee regularly misses work because he or she says she is sick.
- An employee has a workers’ compensation injury.
- A family member, friend, health professional, or another representative requests a reasonable accommodation on the employee’s behalf.
- A manager or supervisor observes the employee’s limited work performance due to a disability.
- The employer receives work restrictions from a medical provider.
An employer may ask you to provide documentation to support your request for accommodation. These documents can be anything from medical certifications to a letter from your physician identifying your work restrictions. To note, medical documentation is especially important when the disability or the need for accommodation is not obvious. You must be able to provide “reasonable medical documentation” in these circumstances.
Your employer may also ask you what specifically you need to accommodate your disability, so you may need to provide your own suggestions. Both parties must participate in the interactive process in good faith.
An employer must make reasonable accommodations for an employee or applicant who has a disability. The only exception is if undue hardship is proven, and that’s a high bar. If you believe your employer isn’t making the accommodations it can to ensure you are able to perform your duties as an employee, contact the lawyers at Sirmabekian Law Firm, PC.
We are here to listen to your issue and to address it comprehensively and make sure you are compensated in whatever way the law allows. Call us at 818-473-5003or fill out an online form to schedule a free consultation today.
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