Does an employer have to accommodate an employee’s disability?

| Nov 27, 2015 | Disability Discrimination |

Often times a temporarily disabled employee can take a medical leave and return to work without any restrictions. If the employee and employer meet certain criteria, the employee will be protected from retaliation or discrimination and legally entitled to return to his or her job. Other times, however, an individual’s disability requires more continued attention. Under these circumstances an employee may be entitled to a reasonable accommodation.

Determining what a reasonable accommodation might be, and who may be entitled to one, is a fact specific inquiry that should be reviewed with an employment attorney. However, there are some basic principles that are helpful to provide a brief overview. First, as with disability leave, the employer must have five (5) or more employees and the employee must have a disability recognized under the Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA). After these have been established the main inquiry will focus on the employee’s ability to perform the essential functions of his or her job and the burden that any accommodation may place on the employer.

Generally speaking, if a disability prevents an employee from performing the essential functions of his or her job, then he or she is entitled to a reasonable accommodation that would allow for performance of the essential functions of the job. FEHA requires an employer to engage in an interactive process where both sides work together to determine what manner of accommodation would be effective in enabling the employee to work. Reasonable accommodations can vary widely. They can be as simple as an ergonomic chair or other office space modification. It could also be a switch to a different position, provided the employee would be qualified in the new role. It all depends on the nature of the employee’s job and the feasibility of accommodating the position.

An employer must engage in an interactive process with an employee. It is possible, however, that an employer is unable to reasonably accommodate the employee. This occurs when the requested accommodation would create an undue hardship on the employer. An undue hardship is one that requires a significant difficulty or expense when considering the financial resources of the employer and the type of business being run.

Even though there may be some limited circumstances where an employer may not be able to accommodate an employee’s disability, it is important for a disabled employee to assert his or her rights. In many cases the employer will be able to accommodate the disability, and at a minimum, the employer needs to engage in an interactive process to determine what accommodations might be possible. If you are disabled and believe you are entitled to an accommodation it is important to contact an experienced employment law firm immediately so they can help guide you through this process and enforce your rights.

Howard Rutten – Founder

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