Question:

One of my employees claims to have a mental disability requiring accommodation. For a number of reasons, both financial and operational, the accommodation he claims he needs is in conflict with our business needs. I understand that there are certain exceptions to an employer’s obligations to accommodate employees with disabilities. What are those exceptions?

Answer:

You are correct. Under certain circumstances, employers are not required to provide reasonable accommodation to a disabled employee or job applicant. For example, employers do not have to accommodate a qualified individual with a disability if it can be shown that such an accommodation would create an undue hardship for the employer. An “undue hardship” is said to exist when the accommodation would be unduly costly, extensive, disruptive or substantial, and/or would fundamentally alter the nature of the operation of the employer’s business. Whether an undue hardship exists is determined on a case-by-case basis. Generally speaking, larger employers are expected to undertake greater efforts and expense in making an accommodation than a smaller employer would be.

The following factors should be considered when determining whether an undue hardship exists:

  1. Size of Employer—The overall size of the facility or establishment, as well as the actual size of the employer (e.g., number of employees, size of budget, annual revenues, etc.).
  2. Type of Employer—Type of facility or establishment’s operation, including composition and structure of workplace and workforce.
  3. Cost to Employer—The nature and cost (both financially and in terms of impact on the workplace) of the accommodation.
  4. Benefits to the Employer—Any available state, federal, or local tax incentives that might be available.
  5. Outside Assistance—The availability of assistance from agencies or organizations such as the California Department of Rehabilitation, the U.S. Department of Health and Human Services, and other private and public agencies that are concerned with the physically and mentally disabled.

In addition, under both the Fair Employment and Housing Act (FEHA) and the Americans With Disabilities Act (ADA), employers are not required to hire or retain a disabled candidate or employee who poses a “direct threat” to the health and safety of coworkers or others. A “direct threat” is defined as a significant risk to the health or safety of others that a reasonable accommodation cannot eliminate. However, the employer must determine whether a reasonable accommodation would mitigate or eliminate the possibility of harm to others. The determination that somebody poses a “direct threat” should be made on an individual, case-by-case basis, and must identify specific conditions or behavior on the applicant’s or employee’s part that constitutes the threat. The risk to others must be current, not speculative and/or remote, and it must be based on reasonable, current medical knowledge or other objective evidence, rather than subjective perceptions, irrational fears, and/or stereotypes.

Finally, the FEHA specifically provides that an employee or job applicant is not qualified, and therefore no accommodation is required, if a disability poses a direct threat to his/her own safety. This threat must be based on a reasonable medical judgment regarding the employee in question, as well as an individualized assessment of the potential risks and harm. It is not a defense to assert that a disabled individual has a condition or disease that poses a future risk, if that condition or disease does not interfere with the employee’s current job performance, and will not do so over a reasonable length of time.

The accommodation requested by your employee may or may not meet the exceptions discussed above. Employers should evaluate these exceptions carefully before taking action on an employee’s request.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2006 Articles