The following is important information about your disability rights at workplace that you might or might not be aware of. Employer often neglect to provide this information to their employees. However, this doesn’t relieve them of the obligation to comply with these rules.
Workers’ disability rights in California are governed primarily by FEHA – Fair Employment and Housing Act. If your employer employs five or more employees (full time or part time), they are subject to the FEHA obligations. This includes engaging in an interactive process and providing reasonable accommodations to workers with qualifying disabilities.
Workplace Disability Definition under FEHA is Broad and Includes Both Physical and Mental Impairments
The definition of disability under FEHA is much more broad than many employee and employers realize. First, both physical and mental conditions can qualify as a disability under FEHA.
A physical disability includes any physiological disease, disorder or condition that affects one or more bodily systems, including neurological or digestive, which limits that individual’s ability to participate in major life activities. Gov. Code Section 12926(l)(1). Common physical disabilities include industrial injuries (back injury, carpal tunnel syndrome, etc.), as well as serious chronic illnesses such as cancer and cancer related treatment, diabetes, high blood pressure, AIDS, and such neurological disorders as sleep apnea.
A mental disability is any mental or psychological disorder, or emotional or mental illness, that limits a major life activity by making the achievement of the major life activity difficult. The term “major life activities” is broadly construed and includes physical, mental, and social activities, as well as working Gov. Code 12926(j). Mental disabilities typically include depression, PTSD, OCD, etc. Thus, an adjustment disorder with mixed anxiety and depressed mood resulting from workplace harassment may qualify as a mental disability. (Diaz v Federal Express Corp). Likewise, attention deficit disorder compound with existing depression and anxiety disorders can also be found to be a mental disability. (Criado IBM Corp.)Many conditions that might not appear as disabling are disabilities within FEHA. Common examples of such disabilities are: diabetes, asthma, high blood pressure, carpal tunnel, AIDS, and in some cases – obesity. FEHA also protected workers with mental disabilities, which include OCD, ADD, ADHD, Bipolar Disorder, and other serious personality disorder, anxiety and depression.
To qualify for the protections of FEHA, the disability symptoms don’t have to be constant, i.e. it’s sufficient that an employee has periodic instances o debilitating high blood pressure or high blood sugar or panic attacks.
An Employer’s Obligation to Provide Reasonable Accommodations to Disabled Workers in California
An employer has to provide “reasonable” accommodations to qualifying disabled employees, if they request an accommodation, or if the employer knows or should know that the employee needs an accommodation, unless doing so would impose undue hardship on the employer’s operations. While the employer is not obligated to read an employee’s mind and guess if that employee needs an accommodation, if it appears from an employee’s behavior or appearance that he might need an accommodation, the employer has an obligation to inquire about the need for an accommodation.
The employer must initiate the process when the employee’s disability is known or apparent (Prillman v United Airlines). Also, no magic words are necessary to trigger the employer’s obligation to engage in the dialogue with the employee about the accommodations that might be needed and should be provided. In other words, the employee does not have to use specific legal language in order to notify the employer of his disability and the need for an accommodation. As long as the employee communicated reasonable clearly that he has a disabled condition and he needs help or adjustment to his work or schedule, this should be sufficient to put the employer on notice, that the employee at least might be disabled within the meaning of FEHA / ADA and qualified for accommodations.
Still, the best practice for employees is to initiate the request an accommodation. If an employee doesn’t know which accommodations can be effective to his disability and which accommodations are available, he should just generally express the need for some accommodations and also request a meeting with the manager in charge of hr or disability compliance to discuss together what can be done to accommodate that employee.
The obligation to provide reasonable accommodations is a continuing one, and it’s not satisfied by one effort. This means that if a particular accommodation provided is no longer effective, the employer has a duty to consider other accommodations in order to allow the disabled employee to continue being employed.
There is no complete or exhaustive list of possible accommodations, and the employers are encouraged to use individual approach and assessment when discussing accommodation and finding solutions to an employee’s disability to ensure that the disabled employee is able to remain part of the workforce. Possible accommodations may include but are not limited to:
- Ergonomic equipment (i.e. ergonomic chairs and keyboards, etc);
- Another type of assisting equipment (eye enlarged computer screens for visually impaired persons, special software, levers for lifting heavy objects to those with lifting restrictions).
- Job restructuring, as may be reasonable and appropriate given the employeee’s needs and the employer’s resources;
- Job reassignment – transfer to a different, vacant position for which the disabled employee is qualified for, modified schedule, partial or full telecommuting, medical leave or an extension to previously granted medical leave for a finite period of time.
- Modified duties / Light duties – removing some of the duties that cannot be performed with an employee’s limitations, and / or replacing them with other lighter duties.
- Modified schedule / telecommuting – allowing an employee to work reduced hours or allowing an employee to work remotely (common in cases where employees have a difficulty walking and arriving to an office).
- Medical leave or an extension to previously granted medical leave – leave to allow an employee to recover from his condition is another common type of a disability accommodation accommodation under ADA / FEHA.
Employers’ Accommodations Obligations When Your Disability Is Not Known or Obvious
The California courts make it clear over and over that where the disability of an employee is not obvious, open, and apparent to the employer, the initial burden rests on the employee to specifically identify the disability and the resulting limitations and to suggest reasonable accommodations. Scotch v Art Institute of California (2009). The employee cannot expect the employer to read his mind and know he secretly wanted a particular accommodation, and sue the employer for not providing that accommodation. Thus, a disabled employee cannot argue in court that certain assisting devices would have allowed him to perform his job duties, if he never asked for them before quitting or before being fired.
The above is one major reason why a disabled worker should be as open, upfront and cooperative with his employer about the nature and extent of his disability, and be proactive about requesting that specific accommodations be considered. Being too concerned about keeping your limitations private and confidential will likely hurt more than help in obtaining reasonable accommodations at work.
Of course, it is well established that if an employee cannot perform the essential functions of his job absent assigning those duties to someone else, then the employee cannot be reasonably accommodated as a matter of law. Robertson v. The Neuromedical Center (5th Cir. 1998).
Disability Rights and Medical Confidentiality under California Law – What You Need to Know
The employer has the right to know at least the basic details about the nature of the disability, symptoms and restrictions of the employee who is requesting an accommodation. Confidentiality and medical privacy are not an excuse for not offering an accommodation to a qualifying disabled employee. Therefore, the employer cannot simply say: “we knew that something was wrong with an employee, but he didn’t tell us, and we didn’t ask because of medical privacy.” The employer must ask the questions about the employee’s limitations in order to gather the needed information in order to provide accommodations. It’s a common mistake for disabled employee to ask for accommodations without giving any information to their employers about their limitations, thereby preventing the employer from fulfilling the request for an accommodation.
Limitations on Employers’ Obligations to Provide Reasonable Accommodations under ADA and FEHA:
The employer does not have to do the following:
- provide a perfect accommodation or the exact accommodation that the employer asks, but only a “reasonable” accommodation;
- create a new position in order to accommodate an employee or displace another employee;
- keep the position open indefinitely while the employee is out on disability leave; or
- provide other accommodations that are too expensive or burdensome on the employer.
Whether a particular accommodation presents an undue hardship on the employer is determined on a case by case basis. However, generally the burden to show the existence of undue hardship is on the employer, and the larger the employer is, the more difficult for that employer to meet that burden.
If an employer rejects an accommodation suggested by an employee, the employer has to offer an alternative effective accommodation available.
Retaliation and Discrimination for Exercising Disability Rights Is Illegal
It is a violation of FEHA to discriminate or retaliate against an employee by demoting or terminating that employee on the basis of his disability or because he exercised his rights under FEHA, including requesting reasonable accommodations to a disability.
For more information about about the workplace disability rights in California, please read the article about your rights as a disabled worker in California.