Understanding An Employer’s Ongoing Obligation to Accommodate Disabled Employees

  27 July 2016

Pursuant to both federal law (the Americans with Disabilities Act) and California law (the Fair Employment and Housing Act (FEHA)), disabled employees are entitled to significant protections from discrimination, harassment and retaliation in the workplace.

Pursuant to both federal law (the Americans with Disabilities Act) and California law (the Fair Employment and Housing Act (FEHA)), disabled employees are entitled to significant protections from discrimination, harassment and retaliation in the workplace. The FEHA specifically requires that if a disabled employee is experiencing difficulty performing the essential functions of the job, or if the employee is returning to work with restrictions that may necessitate an accommodation, the employer must engage in an interactive process with the employee to determine whether an accommodation is available that will enable the employee to perform the essential functions of the job. A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions of the job.

“Qualified” disabled employees are entitled to protection under the FEHA/ADA. A “qualified” individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that he/she holds or seeks, who can perform the essential functions of the job with or without reasonable accommodation. Disabled employees are protected from adverse employment actions related to all aspects of employment including job application procedures, hiring, firing, advancement, compensation, and training. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities. To help avoid claims of disability discrimination, harassment or retaliation, employers must engage in the interactive process with an employee to explore possible accommodations that will enable the employee to perform the essential functions of his or her job, including considering alternative, vacant positions if the employee cannot be accommodated in his or her current position. The interactive process involves an ongoing dialog between the employer and employee to review the employee’s medical restrictions, job description (essential functions) and possible accommodations that would enable the employee to perform the essential functions of the job. One excellent source for accommodation suggestions is the “Job Accommodation Network” (JAN). This network provides free, expert, and confidential guidance on workplace accommodations and disability employment issues. JAN’s consultants offer one-on-one guidance on workplace accommodations, the ADA and related legislation, and self-employment and entrepreneurship options for people with disabilities. Assistance is available both over the phone and online. Those who can benefit from JAN’s services include private employers of all sizes, government agencies, employee representatives, and service providers, as well as people with disabilities and their families.

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