Written by Galen T. Shimoda and Jennet F. Zapata
Employees sometimes suffer from a mental or physical condition that affects their daily activities, including doing their job. Some of these health conditions can range from learning disabilities and severe depression and anxiety, to physical limitations, such as carpal tunnel syndrome, or speech and hearing impairments, to name a few. Some individuals may not be able to lift more than a certain number of pounds at work, or may suffer pain when performing a certain repeated activity. We consider these limitations as "disabilities."
A common question is what the employer can or should do to address that employee's disability. In our practice, we often receive calls from employees who suffer from a disability that resulted in harassment by their supervisors. They may have tried to reach someone in the Human Resources department without much success. Worst of all, some employees face termination because of their disabilities. Such actions may constitute illegal discrimination if an employee can show a causal connection between his or her disability and the employer's actions.
Here is a little bit of background information on disability law. In 1990, the federal government adopted the Americans with Disabilities Act (commonly known as the ADA) to protect employment opportunities for qualified employees with disabilities. In essence, the law prohibits employers, both public and private, from discriminating on the basis of disability. It also requires employers to make reasonable accommodations to enable qualified disabled individuals to perform their job. California law, specifically the Fair Employment and Housing Act ("FEHA'), also protects employees with a disability. Oftentimes, FEHA is more protective or broader than the ADA and we often choose to bring a suit or claim under this law.
However, the requirements of the ADA and FEHA do not apply to every employer out there. For instance, the ADA applies to employers with more than 15 employees. The FEHA applies to employers with five or more employees. If the law covers a particular employer, the next question is whether an employee has a qualifying disability. The existence of a "disability" involves a case-by-case determination. It depends on the specific health condition of each individual. If you have a question about whether your health condition qualifies as a protected "disability," please consult an attorney regarding your particular situation.
In general, the ADA defines a disability as a physical or mental impairment that "substantially limits" one or more major life activities. FEHA requires only that a physical or mental disability "limits" a major life activity. The distinction is again intended to result in broader coverage under the law of California than under the ADA. Employees or applicants who are regarded as having a disability, or have a record of disabilities, may also be protected. But, even a disabled employee must be able to perform the essential job duties with or without reasonable accommodation in order to receive protection under the law.
Generally, an employer has a duty to provide reasonable accommodations for an employee with a disability. An accommodation should enable the employee to perform a position's essential job duties, unless the requested accommodation would produce undue hardship to the employer's operations. Finding a reasonable accommodation requires the employer and the employee to engage in meaningful discussions about possible accommodations.
The employer's duty to accommodate may arise even if the employee has not requested any accommodation. However, it is important that an employee clearly inform his employer of his or her disability. An employee may do so in writing, by speaking and meeting with his or her supervisor, or by approaching Human Resources, if available, to discuss his or her situation and needs. Once the employer knows that an employee suffers from a disability that may hinder his or her ability to continue in the same job, the employer should make known to the disabled employee of possible accommodations.
Accommodations may include making the facilities accessible to and usable by disabled individuals, restructuring the job, offering part-time or modified work schedules, reassigning the employee to a vacant position (even if the employee's pay is lowered), and others. A leave of absence may be a reasonable accommodation under FEHA if the employee can return to the job in the foreseeable future, but there are limitations. A reasonable accommodation can take many shapes and forms. The important thing is that the employee request an accommodation, and that the employer engage in a good faith interactive process in response to a request for a reasonable accommodation.
If you have any issues with your classification at work, please contact our office.