Reasonable Accommodation in Employment - DFEH

Reasonable Accommodationin EmploymentSusan Saylor, DFEH Chief Counsel

Overview1. Disability?2. Qualified?3. Reasonable?4. Interactive Process

WHAT IS A DISABILITY?– A physical condition that• Affects a major life system, and• Limits the ability to participate ina major life activity (MLA)

Example: Nearsightedness

WHAT IS A DISABILITY?DisabilityMaybeNot• HIV/AIDS• Hepatitis• Epilepsy• Clinicaldepression• Bipolardisorder• Diabetes• Multiplesclerosis• Heartdisease• Backconditions• Polio• Hypertensionandhighbloodpressure• Obesity• Pain

The MLA of Working• Exclusion from asingle job with asingle employerconstitutes alimitation on“working”

Regarded as having a disability• Record or history of physical disability• Regarded as disabled

QUALIFIED?• OK to discriminate if unable toperform essential duties even withreasonable accommodations

Essential Functions• The fundamental job duties– Not marginal

Example: Essential or Marginal?• A cable installer’s asthmaprevented her from tearing outcables– But tearing out cables occupied only12% of a cable installer’s time– H: Tearing out cables not an“essential function”

REASONABLE?UNREASONABLE = UNDUE HARDSHIP

• Knowledge ofdisability triggersduty toaccommodateNOTICE

ACCESS TO INFORMATION– No diagnosis– May ask for functional limitations

Types of reasonableaccommodations• Making facilities accessible• Part-time schedule• Buying new equipment or devices• Adjusting or modifying examinations• Providing qualified readers orinterpreters• Leave of absence• Alcohol or drug rehabilitation• Reassignment to vacant position

Reassignment to vacant position• When employee no longer able to performEF• Even if less pay• Preferential consideration over existingemployees– But, no need to promote or create newposition

THE INTERACTIVE PROCESS

Elements• Timely• Good Faith• Interactive• Purpose is to determine whetheran effective accommodation canbe found

Hypothetical #1Marriage and Family therapistMary Toot counsels patientsin psychological crisis for alarge HMO. Due to theconvergence of stressorsincluding a high caseload, twopatient suicides, a sexualharassment scandal at theworkplace, and the onset ofmenopause, Mary suffers anervous breakdown,becoming completely unableto work.What should heremployer do?• Leave ofabsence• Return to workwhen Mary’sdoctor says she’sready:– Reduced hours– No crisiscounseling– Differentsupervisor

Hypothetical #2Nurse Practitioner Deena Mahonperforms routine patient care atthe OB/GYN clinic of a largeHMO. She develops repetitivestress injuries in her wrist andshoulder due to a poorergonomic environment and therelentless appointment schedule.Her employer replaces some ofthe equipment in herexamination room, but Deenacontinues to experience pain onthe job. After speaking with herdoctor, she brings in a noteasking to work a six hour day.• Ergonomic evaluationof exam room,equipment• Redistribution oftasks?• Flexible scheduling• Undue burdenanalysisWhat should her employer do?

Hypothetical #3Jane Chow works the swingshift at the County Jail,booking inmates. She hashigh blood pressure.Sometimes there are notenough workers reporting inon the graveyard shift, andJane is required to work adouble shift on those days.When she is asked to work adouble shift, Janeexperiences an episode ofhigh blood pressure, and usesher sick leave to go home.• Should Jane’s employerallow her to be excusedfrom the second shift as areasonableaccommodation?• Now consider that Jane’sunion contract requiresher to work a doubleshift when necessary toprovide adequatecoverage for the Jail.– Does this change youranswer?

THE END