When does an employee's disability or medical condition qualify for legal protection? Let's first understand how a disability is defined under the law. The Fair Employment and Housing Act (FEHA) defines two categories of disability -- (1) mental disabilities, and (2) physical disabilities. In addition, if you have a "medical conditions," this is also protected.
A physical disability will include: any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that (1) effects one or more or several body systems and (2) limits a major life activity such as working if it makes the achievement of the major life activity difficult. These include serious conditions like heart disease or epilepsy, for example, as well as conditions like back injuries, carpal tunnel syndrome, etc. Physical disabilities do not have to be permanent - temporary conditions will often qualify.
Having a mental disability includes any mental or psychological disorder or condition, such as intellectual or cognitive disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. This may include depression, anxiety, etc.
A medical condition is any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer, or a genetic characteristic. A "genetic characteristic" can be a scientifically or medically identifiable gene or chromosome or even an inherited characteristic that could statistically lead to increased development of a disease or disorder. But keep in mind, your employer cannot directly or indirectly require you to test for the presence of a genetic characteristic. In determining a disability, your employer can only request medical records directly related to the disability and need for accommodation.
Once a disability that is protected under the law is established, your employer is obligated to provide "reasonable" accommodations, unless the accommodation would represent an undue hardship to the operation of the business. At this point, an employer must enter into what is known as a "good-faith" interactive process to determine if there is a reasonable accommodation that would allow you to continue working.
What is a reasonable accommodation? Any appropriate measure that would allow an employee with a disability to perform the essential functions of the job. For example, making facilities accessible to individuals with disabilities. It can also include restricting jobs, modifying work schedules, buying or modifying equipment. A basic example of an accommodation is providing a keyboard rest for a person with carpal tunnel syndrome.
What is the interactive process? A timely, good faith communication between you and your employer or other covered entity. The purpose of this communication is to explore whether or not an employee needs reasonable accommodation for the disability to perform the essential functions of the job, and, if so, how the employee can be accommodated.
What happens if an employer says the accommodation would present an undue hardship? The employer must show that the accommodation requires significant difficulty or expense, in consideration of some of the following factors:
1. Nature and cost of the accommodation needed;
2. The overall financial resources of the employer, the overall size of the business with respect to the number of employees, and the number, type, and locations of the facilities.
For example, an applicant with a severe vision impairment applies for employment with a small market that has only four other employees. The applicant requires assistance to work the register by having another employee present at all times. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or could not afford the cost of remodeling to accommodate two employees at the same time.
Accommodations of persons with disabilities on the job is vital to the maintenance of good employer/employee relations. And understanding the duties and responsibilities of your employer is crucial.
At The Rutten Law Firm, APC, we are experts at helping employees resolve disability discrimination or harassment which occurs in the workplace.