The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) prohibit employment discrimination against qualified applicants and employees on the basis of disability. In accordance with the law, it is the policy of the City and County to provide equal employment opportunities to qualified individuals with disabilities.
WHO IS PROTECTED?
The law covers qualified applicants and employees with disabilities. A qualified individual with a disability is defined as an individual with a disability who meets the skill, experience, education and other job-related requirements of a position held or sought, and who, with or without reasonable accommodation, can perform the essential functions of the job.
A person with a disability is an individual who:
has a physical or mental impairment that limits a major life activity; or
has a record of such an impairment which is known to the employer; or
is regarded by the employer as having, or having had, such an impairment; or
is regarded by the employer as having, or having had, a disorder or condition that has no present disabled effect, but that may become a disability.
Impairments that require special education or related services are also disabilities.
Major life activities include seeing, hearing, breathing, walking, speaking, learning, working, caring for oneself, performing manual tasks, lifting, and other physical, mental and social activities, etc.
YOUR RIGHTS UNDER THE LAW
An employer must provide equal employment opportunity for qualified applicants with disabilities to enable them to participate in the job application process and to be considered for a job.
Reasonable accommodations must be provided, as needed, to ensure that individuals with disabilities have equal opportunity in the application and selection process, unless to do so would be an undue hardship or pose a direct threat to the health and safety of others.
An employer does not have to accommodate individuals who are not otherwise qualified for the position that they seek.
Tests must be job-related, that is, designed to measure the skills and abilities that an employee will need on the job.
The law prohibits discrimination, but does not require affirmative action. The employer is free to hire the most qualified applicant.
The law prohibits discrimination in all employment practices, including, but not limited to, promotion, transfer, termination, compensation, job assignments, leaves of absence, fringe benefits, training, activities, and any other term, condition, or privilege of employment.
The employer must provide reasonable accommodations to qualified employees with disabilities, unless to do so would be an undue hardship or pose a direct threat to the health and safety of others.
An employer does not have to accommodate employees who are not otherwise qualified for the position that they hold.
Medical Examinations and Inquiries
An employer may not require applicants to take medical examinations or answer any disability-related questions. The employer may ask a job applicant or employee about his or her ability to perform job-related functions and may respond to an applicant’s or employee’s request for reasonable accommodation.
Once a conditional offer of employment has been made, the employer may require a medical examination or ask disability-related questions, provided that the examination or question is job-related and consistent with business necessity and all entering employees in the same job classification are subject to the same examination or question.
An employer may require medical examinations or ask disability-related questions of an employee, provided that the examination or question is job-related and consistent with business necessity.
An employer may require medical documentation to evaluate a request for reasonable accommodation by an employee or an applicant.
Tests to detect illegal use of drugs are permitted under the law and are not subject to the above restrictions.
Medical-related information shall be confidential, except for those supervisors, safety personnel, compliance officers, or other specified individuals who have a need to know.
HOW TO REQUEST A REASONABLE ACCOMMODATION
In general, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed. A reasonable accommodation is a modification or adjustment to a job, employment practice, or work environment which enables a qualified individual with a disability to enjoy equal employment opportunity. An employee may request to be represented in this process by the employee’s union, attorney, or any other individual designated by the employee.
To request a reasonable accommodation in the application and selection process, contact the personnel analyst or personnel officer at the number or address on the job announcement as soon as you are aware that an accommodation will be needed.
An employee may request a reasonable accommodation by notifying the employee’s supervisor, personnel officer, Reasonable Accommodation (RA) coordinator, or department head. Such request may be made verbally or in writing by the employee or his or her representative. The employee will be provided with information on the reasonable accommodation process and the necessary forms to be completed by the employee and the employee’s doctor or health care provider.
When the completed forms are returned, the department’s RA coordinator will review the information to determine if the employee is a qualified individual with a disability, and if so, whether an accommodation is appropriate. The coordinator may confer with the employee’s supervisor, the employee’s health care provider, or the RA coordinator in the Department of Human Resources to review the requested accommodation and/or other alternatives. The RA coordinator will also contact the employee to discuss the requested accommodation and/or alternatives.
This process will be completed as quickly as possible. However, if the information on the forms is incomplete or unclear, the process may be delayed. The employee who is requesting reasonable accommodation should make sure that forms are completed accurately and returned as soon as possible. The department will provide the employee with a written update on the status of the request within fifteen days from the day that the request is acknowledged.
The department RA coordinator will review the recommended action with the department head and with DHR, and will notify the employee of the department’s decision on the request. If the request is not approved, the employee will be informed of other options that could be explored.
Under both the ADA and the FEHA, “the interactive process requires communication and good faith exploration of possible accommodations between employers and individual employees. That shared goal is to identify an accommodation that allows the employee to perform their job effectively. Both sides must communicate directly, exchange essential information.” (Barnett v. U.S. Air, Inc. 228 F. 3d 1105, 1114-1115 (9th Cir. 2000), revd. on other grounds U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).)
FEHA Mandates a Good Faith Interactive Process. “Employers must engage in a good faith interactive process with employees and candidates who have disabilities to determine the appropriate reasonable accommodations that might overcome the employee’s/applicant’s job limitations.” This is a stand alone statutory requirement. Source: Fair Employment and Housing Act-FEHA (Government Code § 12940(n)
QUESTION: WHAT ARE MY RIGHTS AS AN EMPLOYEE/APPLICANT IN CALIFORNIA UNDER THE FAIR EMPLOYMENT HOUSING ACT?
ANSWER: The California Fair Employment Housing Act requires employers with five or more employees to provide reasonable accommodations to individuals with a physical or mental disability to perform the essential functions of their job unless it would cause an undue hardship. The exchange of information and dialogue in addressing a disability in the workplace is known as the interactive process. The interactive process requires “bilateral cooperation and communication,” and requires both employee and employer to engage in the interactive process “in good faith.” Should an employee fail to cooperate, an employer cannot be held liable for failure to provide a reasonable accommodation.
QUESTION: DO I HAVE A QUALIFYING DISABILITY?
ANSWER: The ADA defines a disability as one of the following: a) a physical or mental impairment that substantially limits a major life activity; or b) a record of a physical or mental impairment that substantially limited a major life activity; or c) when an entity (e.g., an employer) takes an action prohibited by the ADA based on an actual or perceived impairment.
According to the Equal Employment Opportunity Commission (EEOC), the ADAAA indicated that there are impairments that would automatically be considered disabilities. They include deafness, blindness, intellectual disability, completely or partially missing limbs, mobility impairments that require the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
QUESTION: WHAT SHOULD I DO IF I HAVE A QUALIFYING DISABILITY IN NEED OF REASONABLE ACCOMMODATION IN THE WORKPLACE?
ANSWER: Upon your need / knowledge of a qualifying disability that comes in conflict with your ability to perform any essential function / required of your regular job hold or desire to hold, the following steps should be taken:
Verbally and/or in writing let your supervisor / a human resources representative know of your need for reasonable accommodations in the workplace and request an interactive meeting. Emphasize the urgency, if your request for reasonable accommodation requires immediate attention. DO NOT DISCLOSE YOUR DIAGNOSIS OR MEDICAL CONDITION. ONLY WORK RESTRICTIONS / WORK LIMITATIONS/ REQUEST FOR ACCOMMODATIONS NEED TO BE DISCLOSED.
Refer to your employer’s memorandum of understanding / employee handbook and follow your organization’s policies and procedures that are in place, as they pertain to the process of you requesting reasonable accommodations in the workplace. Immediately contact the parties identified in person, via email and in writing. Fill out requested forms. Emphasize the urgency, if your request for reasonable accommodation requires immediate attention.
Provide your employer with a medical note outlining clear and precise work restrictions.
Your doctor’s note(s) SHOULD include:
- clear and precise work restrictions
- duration of your current work restrictions in place
- any accommodation request and recommendations you doctor may have
Your doctor’s notes SHOULD NOT include:
- your diagnosis or medical condition, (only work restrictions should be noted)
Fill out and submit one of the following forms and/or letters to any of the following personnel: Manager, Supervisor, Team Leader, Human Resources Representative. Ideally, submit these forms and/ or letters to a Human Resources Representative.
Read the following pamphlets.
The following are examples of generic reasonable accommodation options that can be considered for a variety of situations and/or medical conditions.
Restructuring Jobs – A job may be modified so that a person with a disability can perform those essential functions of the position. It is first necessary to identify those tasks that may be difficult for an individual to accomplish because of a disability. The tasks should then be analyzed to identify those factors which specifically make it difficult for the person with a disability to effectively accomplish the job. These factors should be eliminated by: changing the job contents; eliminating nonessential elements; re-delegating non-essential assignments; exchanging assignments with other employees; redesigning procedures for task accomplishment; or, in the case of non-probationary employees; reassignment to another position.
Modifying Worksites – Changes may be needed in the worksite area when there is an employee with disabilities. This may include accessibility to and around the work area, restrooms and other facilities sued by the employee. Adjustments may be as simple as: purchase of equipment; moving equipment or furniture; lowering shelves; moving files, etc.
Adjusting Work Schedules – Some individuals with disabilities are denied employment opportunities because they cannot meet the requirements of a standard 40-hour work week. For these individuals, accommodations might be made as follows: change work hours; temporary reduction of work hours and / or coming later to work; change of shift.
Flexible leave Policies – The Department’s Alternative Work Schedules programs may be used to accommodate employees with disabilities.
Providing Equipment – Through new technologies, numerous assistive devices are available to aid individuals with disabilities. Equipment cannot be of a personal nature such as eyeglasses, hearing aids, wheelchairs, prosthetic limbs or similar devices, and must be directly related to the performance of the job. Before purchasing any equipment, the employee must be consulted to determine what is needed and/or wanted.
Reassignment – In cases of current employees who develop disabilities during their employment, or whose disabilities are aggravated during their careers, managers and supervisors have a responsibility to make a concerted effort for their continued employment. Reassignment is the last resort and is required only after it has been determined that : (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, and (2) all other accommodations would impose an undue hardship.
Each of your requests for reasonable accommodation will need to be addressed by your employer on a case by case scenario.
DISCLAIMER: The information and materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. This brief outline of your disability compliance obligations is designed to provide accurate and authoritative information in a highly summarized manner in regard to the subject matter covered on this website. They provide the reader / end user with the understanding that the publisher of this information is not engaged in rendering legal advice / services. If legal assistance is required, the services of competent legal professionals should always be sought.