Question:

I am confused about my obligations to disabled employees. I recently read that under California law it is now more difficult for employers to defend themselves in disability discrimination cases. What are the standards?

Answer:

A new California Appellate court case, Green v. State of California, makes it easier for an employee to prove a disability discrimination case under the California Fair Employment and Housing Act (FEHA) by no longer requiring an employee to prove they are a “qualified” employee for the position at issue. As a result, an employer may have a more difficult time defending the case.

Federal and California state law previously required an employee who sued for disability discrimination to prove that the employee 1) suffers from a disability; 2) is “qualified” to perform the essential functions of the job with or without accommodation; and 3) was subject to an adverse employment action because of the disability. Once the employee established his or her initial case of disability discrimination, the employer could defend it by proving there was a legitimate non-discriminatory reason for the adverse action. The employee then had to prove that the employer’s offered reason was false and a mere pretext for discrimination.

The new court ruling changes these standards, and holds it is not the employee’s burden to prove he or she is qualified to perform the essential functions of the job. Instead, it is the employer’s burden as a possible affirmative defense to prove the employee’s inability to perform the job. Specifically, the employer must prove that the employee is incapable of performing the essential functions of the job with or without reasonable accommodation. Therefore, an employee has one less hurdle in proving disability discrimination under the FEHA. The prior federal standard under the Americans with Disabilities Act (ADA) remains unaffected.

In light of this new court ruling, it is important for employers to identify and be aware of the essential functions of each job in their workplace. Under California law, the “essential functions” of a job are the fundamental job duties of the position. Evidence of whether a particular function is “essential” includes the following:

  • The employer’s judgment on which functions are essential
  • Written job descriptions
  • Time spent on the job performing the function
  • Consequences of not requiring the employee to perform the function
  • Terms of any collective bargaining agreement
  • Work experience of past employees in the job
  • Current work experience of employees in similar jobs.

If a job applicant or employee makes a request for an accommodation, the employer may request a certification from a healthcare provider explaining the employee’s work restrictions, so it can determine what type of job accommodations to make and whether they would enable an employee to perform the essential functions of his or her job. It is important to consult legal counsel and/or your Human Resources Office before questioning an applicant or employee regarding any disabilities and related work restrictions to ensure you are not violating the law.

For a valid defense, the employer must identify any possible reasonable accommodations for the applicant or employee and articulate why these accommodations would not enable an employee to perform the essential functions of his or her job. The employer is required to engage in a timely, good faith, interactive process with the applicant or employee to determine effective reasonable accommodations, if any. However, an employer is not required to provide an accommodation that produces an “undue hardship” on its operation. Under California law, “reasonable accommodations” may include the following:

  • Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities
  • Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

If an employer is unable to accommodate a person with a disability, this decision should be documented in writing and include at a minimum, the following:

  • Title of the position the applicant/employee seeks or desires
  • A list of the essential functions of the position
  • Document what the applicant’s/employee’s work restrictions are as permitted by law
  • Document possible reasonable accommodations for the applicant/employee
  • Substantiate and document how the applicant/employee would be unable to perform the essential functions of the position with or without reasonable accommodation
  • Attach a copy of the position description to the decision memo.

This is a complex area of the law, and it is important to comply with the legal requirements in fulfilling your obligations to disabled employees and applicants.
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