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Disabled Employee Rights Under the ADA and California’s FEHA

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imagesThe Americans with Disabilities Act applies only to employers with fifteen or more employees. However California’s Fair Employment and Housing Act also prevents discrimination based on a physical disability. FEHA applies to employers with five or more employees.

Employers cannot discriminate based on disability. Employers cannot automatically say we cannot accommodate your request for a modification of the work place. With disability law an employer has affirmative obligations beyond simply not discriminating. The employer must go through an “interactive process” with an employee who is requesting an accommodation due to a covered disability.

California case law imposes a very broad requirement on employers to search for other vacant positions within their entire organizations after they have determined they cannot reasonably accommodate a disabled employee in his or her prior position. For a multi-state employer, this means checking all other operations for a vacant position, or establishing that during the interactive process the employee was only willing to re-locate within a limited radius. This California rule contrasts with the more lenient federal rule requiring generally that an employer only demonstrate that it “engaged in a good faith effort to identify a position.” The primary obligation relates to California FEHA’S Duty to Engage in an Interactive Process.

Under California FEHA, an employer has a duty to engage in a “timely, good faith, interactive process” to determine effective reasonable accommodations for a person with a known disability. Further, the employer’s obligation extends to employees who do not have an actual disability, but are “regarded as” disabled.

If a person has a disability, California employers must provide a reasonable accommodation, to allow a person to perform the essential functions of their job, as long as it does not cause an undue hardship to the employer. Before an employer addresses these rules, they must start by engaging in an interactive dialog with the employee to see if they have a covered disability.

A covered disability is defined as a physical or mental disability that limits one or more major life activities on a long term basis. The disability “makes the achievement of a major life activity difficult.” Further, if a person does not have a disability currently, but they have a prior history of having a disability, and an employer discriminates on the basis of this perception, the law protects the person. Anyone who is treated or “regarded as” having a disability is covered.

Example: A job applicant who had cancer 10 years ago, is now cancer free, but is told they are not being hired because the employer is worried they will get cancer again. This person is covered under the Americans with Disabilities Act or ADA. This is an example of a “regarded as” claim.

Example: An employer thinks their employee is bi-polar, because some days they work well and other days they just cannot get anything done. Whether this person is or is not bi-polar doesn’t matter under disability discrimination law. An employer who associates job performance within the context of a disability makes that person a qualified person with a disability.

Example: An employee continually takes unscheduled absences and when they are at work they seem tired and spacey. Their work quality is not good. The employee has not mentioned it, but employer is concerned employee has a medical condition that is impacting job performance. What does the employer do? First open up a dialog and talk to the employee about their work performance. Do not start by asking if they have a medical condition. Technically, if the employer believes the employee is not able to perform the essential functions of their job, they may engage in a medical inquiry. However, here that may be premature. The starting point is to open up a dialogue to determine what is going on with the worker. Why are they having difficulty? What can the employer do to help them? This discussion may lead to the employee disclosing a medical condition. From there the employer needs to engage in an interactive dialog and determine if there is a reasonable accommodation that allows the employee to perform the essential functions of their job.

What if the employee states her depression and her recent fatigue is related to a medication adjustment? Can the employer ask for a doctor’s note? The answer is yes. An employer may verify a medical condition and ask for the types of accommodations that may be needed to assist the individual in performing the essential functions of their job.

Can an employer ask this employee to be examined by a doctor chosen by the employer? If the employee is a direct threat to herself or others an employer may request an examination by a doctor chosen by the company. However an employer is encouraged to start with the employee’s doctor. The employee’s doctor can verify the medical condition and what kinds of accommodations are necessary. However, if the employer gets back information that is ambiguous, or does not seem correct, an employer may send their employee to a physician chosen by the company.

It is an employer trap to focus on the actual medical condition itself. The key is to focus on the accommodation and what is necessary for an employer to make an analysis of what accommodations are appropriate. The more an employer focuses on what accommodations the person needs, to do the essential functions of their job, the less likely it is that an employer is going to get into unnecessary detail about what condition the person has. The focus should be what accommodations are necessary or possible to make the employee a functioning employee.

Lesson for Employer: If an employee comes to an employer and says; “I have a medical condition that I need an accommodation for.” The employer needs to get the employees point of view on their medical condition. Once an employer understands the employee’s view, the employer can step back and figure out a compliant strategy. An employer who immediately says, “No, I cannot accommodate you,” risks violating the law and subjecting the company to a disability discrimination based lawsuit. The first step for the employer is to engage in an interactive dialog.

An employer may make a medical inquiry when there is a question about the employee’s ability to perform the essential functions of their job. Further, if an employee poses a direct threat to themselves or others an employer may make a medical inquiry.

In summary employees and employers should work together in a positive and constructive way to deal with disabilities that affect a persons’ ability to work. Employers should not jump to early conclusions, without engaging in the interactive process, and documenting the discussions and offers of accommodation to their employees.

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