News
Labor/Employment
Jul. 19, 2002
Detailed Process Lets Firms Fulfill Obligation to Workers
Employment Column - By Mark A. Romeo and Barbara J. Miller - Over the past decade, federal courts have limited severely the scope of the Americans with Disabilities Act. In 2000, California's Legislature responded to this federal trend by amending Government Code Section 12940, known as the Fair Employment and Housing Act, to protect a broader range of employees than the range covered by the ADA.
Employment Column
By Mark A. Romeo and Barbara J. Miller
Over the past decade, federal courts have limited severely the scope of the Americans with Disabilities Act. In 2000, California's Legislature responded to this federal trend by amending Government Code Section 12940, known as the Fair Employment and Housing Act, to protect a broader range of employees than the range covered by the ADA.
The ADA protects employees with physical or mental impairments that substantially limit major life activities. California's law, however, requires only that the impairment make performance of a major life activity difficult, under Section 12926(k)(B). Under the federal disabilities act, an impairment substantially limits the major life activity of working only if it prevents an employee from performing a broad range of jobs. In contrast, California's protections apply where an impairment makes performance of the employee's own job more difficult. Also, the law finds no disability where mitigating measures such as medication eliminate the impairment. California's law requires courts to determine the existence of a disability without regard to such mitigating measures. Consequently, California law firms cannot rely on decisions interpreting the law but instead must understand the full nature and scope of the real and significant reasonable accommodation burden imposed by the California law.
California requires that employers engage in a timely, good-faith interactive process with disabled employees to determine the nature and extent of reasonable accommodation alternatives. The interactive process obligation arises when the employer receives notice that an employee suffers from a disability that impairs job performance. Notice may come from any source including the employee, a family member, a co-worker or the existence of an obvious disability. The law prohibits inquiry about a disability unless the employer has objective facts indicating that a medical condition is impairing job performance.
After receiving notice, the employer should define carefully the job's essential functions. The goal of any accommodation involves enabling the employee to perform essential job functions without a diminution in quality. Consequently, the employer cannot evaluate adequately the reasonableness or effectiveness of a requested accommodation absent an accurate description of essential functions. Defining essential functions involves determining whether a function is necessary for performing the job. Courts give some deference to written descriptions of essential functions prepared before the need for accommodation arises. Courts also consider factors such as the amount of time spent on the function, number of employees among whom the function could be distributed, skill required to perform the function, consequence of eliminating the function from the position and the work experience of current and former employees in the position.
Once essential job functions are defined, the employer should gather information necessary to evaluate the accommodation request from the employee as well as his or her health care provider. The information requested should include the nature, severity and duration of the impairment; the life activities limited by the impairment; the job functions limited by the impairment; and suggested accommodations that would enhance performance of functions made more difficult by the impairment. The interactive process obligation falls on employees as well as firms, and employees must comply with reasonable requests for information.
The information gathered during the interactive process should enable evaluation of accommodation alternatives. The law requires that employers implement reasonable accommodations that do not result in an undue hardship. An accommodation imposes an undue hardship if it causes a severe financial impact. Also, California does not require employers to reasonably accommodate an employee if doing so would endanger the employee's health or safety or the health or safety of others. Examples of reasonable accommodations include facility or work area modifications; the purchase of equipment, devices or tools; job restructuring; modified or part-time work schedules; leaves of absence; telecommuting; reassignment of nonessential functions; the hiring of readers, transcriptionists and interpreters and reassignment to other positions.
Work area modifications might include elevators, quiet or private work areas, or workstation configuration changes. Typical equipment requests include ergonomic chairs, modified keyboards and tools or machines to help with lifting. Job restructuring involves reassigning nonessential functions, increasing functions that the employee can perform and reducing responsibilities made more difficult by the impairment. Part-time or flexible schedules often constitute reasonable accommodations. Employers should evaluate carefully leaves of absence of a limited duration (generally less than one year) that enable the employee to return to work and perform the job.
After exploring accommodation alternatives, the firm should implement a reasonable accommodation that does not impose an undue hardship and evaluate whether the implemented accommodation enables the employee to perform the job. If the accommodation proves ineffective, the employer should consider and implement an alternate reasonable accommodation, if one exists. This process of implementing and evaluating accommodations should continue until either a reasonable accommodation proves effective or all reasonable alternatives have been exhausted. Finally, if no reasonable accommodation exists for the employee's position, the employer must offer reassignment to any other open position that the employee can perform.
The firm satisfies its obligation when it engages in the interactive process and implements reasonable accommodations that enable a disabled employee to perform essential job functions. The law is also satisfied when an employer engages in the interactive process and establishes that no reasonable accommodation could enable the employee to perform essential functions. Consequently, if law firms understand their obligations and carefully manage accommodation requests, they can comply with the law without a permanent diminution in either work quality or productivity.
Mark A. Romeo and Barbara J. Miller are associates in Brobeck, Phleger & Harrison's Irvine office.
By Mark A. Romeo and Barbara J. Miller
Over the past decade, federal courts have limited severely the scope of the Americans with Disabilities Act. In 2000, California's Legislature responded to this federal trend by amending Government Code Section 12940, known as the Fair Employment and Housing Act, to protect a broader range of employees than the range covered by the ADA.
The ADA protects employees with physical or mental impairments that substantially limit major life activities. California's law, however, requires only that the impairment make performance of a major life activity difficult, under Section 12926(k)(B). Under the federal disabilities act, an impairment substantially limits the major life activity of working only if it prevents an employee from performing a broad range of jobs. In contrast, California's protections apply where an impairment makes performance of the employee's own job more difficult. Also, the law finds no disability where mitigating measures such as medication eliminate the impairment. California's law requires courts to determine the existence of a disability without regard to such mitigating measures. Consequently, California law firms cannot rely on decisions interpreting the law but instead must understand the full nature and scope of the real and significant reasonable accommodation burden imposed by the California law.
California requires that employers engage in a timely, good-faith interactive process with disabled employees to determine the nature and extent of reasonable accommodation alternatives. The interactive process obligation arises when the employer receives notice that an employee suffers from a disability that impairs job performance. Notice may come from any source including the employee, a family member, a co-worker or the existence of an obvious disability. The law prohibits inquiry about a disability unless the employer has objective facts indicating that a medical condition is impairing job performance.
After receiving notice, the employer should define carefully the job's essential functions. The goal of any accommodation involves enabling the employee to perform essential job functions without a diminution in quality. Consequently, the employer cannot evaluate adequately the reasonableness or effectiveness of a requested accommodation absent an accurate description of essential functions. Defining essential functions involves determining whether a function is necessary for performing the job. Courts give some deference to written descriptions of essential functions prepared before the need for accommodation arises. Courts also consider factors such as the amount of time spent on the function, number of employees among whom the function could be distributed, skill required to perform the function, consequence of eliminating the function from the position and the work experience of current and former employees in the position.
Once essential job functions are defined, the employer should gather information necessary to evaluate the accommodation request from the employee as well as his or her health care provider. The information requested should include the nature, severity and duration of the impairment; the life activities limited by the impairment; the job functions limited by the impairment; and suggested accommodations that would enhance performance of functions made more difficult by the impairment. The interactive process obligation falls on employees as well as firms, and employees must comply with reasonable requests for information.
The information gathered during the interactive process should enable evaluation of accommodation alternatives. The law requires that employers implement reasonable accommodations that do not result in an undue hardship. An accommodation imposes an undue hardship if it causes a severe financial impact. Also, California does not require employers to reasonably accommodate an employee if doing so would endanger the employee's health or safety or the health or safety of others. Examples of reasonable accommodations include facility or work area modifications; the purchase of equipment, devices or tools; job restructuring; modified or part-time work schedules; leaves of absence; telecommuting; reassignment of nonessential functions; the hiring of readers, transcriptionists and interpreters and reassignment to other positions.
Work area modifications might include elevators, quiet or private work areas, or workstation configuration changes. Typical equipment requests include ergonomic chairs, modified keyboards and tools or machines to help with lifting. Job restructuring involves reassigning nonessential functions, increasing functions that the employee can perform and reducing responsibilities made more difficult by the impairment. Part-time or flexible schedules often constitute reasonable accommodations. Employers should evaluate carefully leaves of absence of a limited duration (generally less than one year) that enable the employee to return to work and perform the job.
After exploring accommodation alternatives, the firm should implement a reasonable accommodation that does not impose an undue hardship and evaluate whether the implemented accommodation enables the employee to perform the job. If the accommodation proves ineffective, the employer should consider and implement an alternate reasonable accommodation, if one exists. This process of implementing and evaluating accommodations should continue until either a reasonable accommodation proves effective or all reasonable alternatives have been exhausted. Finally, if no reasonable accommodation exists for the employee's position, the employer must offer reassignment to any other open position that the employee can perform.
The firm satisfies its obligation when it engages in the interactive process and implements reasonable accommodations that enable a disabled employee to perform essential job functions. The law is also satisfied when an employer engages in the interactive process and establishes that no reasonable accommodation could enable the employee to perform essential functions. Consequently, if law firms understand their obligations and carefully manage accommodation requests, they can comply with the law without a permanent diminution in either work quality or productivity.
Mark A. Romeo and Barbara J. Miller are associates in Brobeck, Phleger & Harrison's Irvine office.
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