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When is Reasonable Disability Accommodation Required?

Disability Discrimination , , , , ,

DisabilityBoth the Americans with Disabilities Act and the Fair Employment and Housing Act (FEHA) require employers to make reasonable accommodations for their disabled employees and job applicants. These accommodations can range between accommodations like giving the employee a special tool, providing the employee with extra breaks, or even allowing the employee to take leave or work from home.

An employee is not required to specifically ask for “reasonable accommodations” or to even figure out what the accommodation would be. The employer has a duty to engage with the employee in the process of figuring out what a reasonable accommodation would entail, this is called engaging in the interactive process.

Exceptions to Reasonable Accommodation Requirements

An employer is not required to provide reasonable accommodations in a few limited circumstances. First an employer is not required hire or employ an individual who will endanger the health and safety of themselves or others because they will be unable to perform the essential duties of the job. The essential functions of a job are the duties that are necessary due to one or more of the following:

  1. The reason the position exists is to perform the function at issue.
  2. The amount of employees available to perform that function is limited.
  3. The function is highly specialized and the individual is hired for his or her ability or expertise in performing the function.

Whether a job duty is an essential one is a fact intensive question and can bring up a significant amount of debate. In determining whether a job function is essential the following factors are relevant: the employer’s judgment, the job description, the amount of time the individual performs the job function, the work experience of past individuals in the job category, the current work experience of individuals in the job category, and the terms of any associated collective bargaining agreement.

Reasonable accommodation is also not required if an employee suffers from alcoholism and they perform alcoholism-related misconduct. For example, in the case of Gonzalez v State Personnel Bd. (1995), an employee was absent without leave on several occasions, was proved to be an alcoholic, and was justifiably terminated.

Disability discrimination is a major problem. Legally confronting it enforces your right to be free from discrimination also helps others by preventing employers from engaging in discrimination the future. To learn more about how to get monetary recovery for disability discrimination, contact employment lawyer Michelle Baker today. Schedule your free consultation by calling (858) 452-0093.

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EEOC Disability Guidelines: Part 2

Employee Discrimination , , , , ,

family-medical-leave-actThis post is the second in our two-part December blog series highlighting key aspects of the EEOC’s interpretation of the Americans with Disabilities Act (ADA). Today we will focus specifically on the ADA’s interpretation of intellectual disability and severe illness disability.

Intellectual Disability

2.5 million Americans have been diagnosed with an intellectual disability. However, just as with all other disabilities, the ability to ask an applicant or employee about the disability are very limited. However, once an individual with an intellectual disability is hired an employer may ask about an employee’s intellectual disability to the extent necessary to support the request for a reasonable accommodation, to verify the use of sick leave related to the disability, and for the employee to participate in a wellness program.

Accommodations for intellectual disabilities include not only on the job accommodations, but also application accommodations such as:

  • Providing a reader or interpreter to process complex information for the applicant with the disability.
  • Showing, rather than explaining what the job requires.
  • Providing modified tests, manuals, or training materials.

Individuals with intellectual disabilities also may be entitled to reasonable accommodations on the job including, but not limited to:

  • Reassigning marginal tasks to another employee
  • Providing more detailed, slower, and more extensive training on the job
  • Provide a tape recorder so that the employee can record tasks
  • Acquire other equipment to assist an employee in performing the duties of the job
  • Provide a job coach
  • Modify a work schedule

These accommodations can be requested by anyone other than the employee.

Severe Illness Disability

The EEOC does not provide as robust of an interpretation for individuals with severe illness diagnosis, such as cancer patients. However, it does list a number of special accommodations related to such cased, including:

  • Leave for doctors’ appointments
  • A private area to rest or for periodic breaks
  • Permission to work from home
  • Changes in office temperature

The EEOC also lists the job accommodation network as an additional resource, which provides a list of accommodations for many types of disabilities.

If you have been discriminated against by an employer, former employer, or potential employer due to your disability or perceived disability, contact California employment law attorney Michelle Baker right away. You may be entitled to a lawsuit or settlement for an employer’s discrimination or discriminatory practices. To learn more, schedule a free consultation online or us at call (858) 452-0093.

 

 

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EEOC Disability Guidelines: Part 1

Employee Discrimination , , , , ,

CFRAThis blog is the first of a two-part series this month that will explore the Equal Employment Opportunity Commission guidelines regarding how specific diagnosis may be handled under the Americans with Disabilities Act (ADA). In this post, we will highlight some of the key aspects of the EEOC’s guidelines when it comes to disability.

Diabetes Disability

The EEOC says that most people with diabetes should have no problem being considered disabled for the purposes of the ADA because most people with diabetes are limited in one or more major life activities.

The EEOC guidelines state that an employer may not ask a job applicant questions about diabetes. However, if the applicant voluntarily provides the information the employer may ask follow-up questions such as whether the applicant uses insulin or experiences episodes of hypoglycemia, or whether the applicant will need assistance when her or his blood sugar drops. Additionally, the employer may question whether reasonable accommodation would be necessary if the applicant has an obvious disability.

An employer may also ask disability related questions if performance on the job becomes an issue after being hired. For example, if an employee experiences extreme fatigue or irritability the employer may ask questions as to the reason why. If an employer feels that an employee may be unable to perform the job or poses a direct threat to him or herself or others then the employer may ask for medical information about the employee’s condition. However, the employer is only allowed to obtain enough information as necessary to ensure that the employee can perform the duties of the job safely.

The guidelines also go on to list a number of accommodations that employees with diabetes may require, including:

  • A private location to test insulin levels
  • A place to rest when blood sugar becomes abnormal
  • Breaks to drink, eat, take medication, or test blood sugar
  • A leave of absence for treatment, or to obtain training on managing diabetes
  • Modified work schedules
  • Distribution of inessential tasks to other workers
  • Reassignment to a vacant position, with equivalent status and pay

Epilepsy Disability

As with diabetes, an employer may not ask disability related questions, except if the applicant voluntarily brings it up or the disability is obvious. The EEOC also requires that employers who know an employee has epilepsy, keep the information confidential even if the employee suffers a seizure on the job. Accommodations for epilepsy include:

  • Breaks for ingesting medication
  • Leave of absence to adjust to a new medication regimen or to recuperate from treatment
  • A private area to recover from a seizure
  • A cushion to break a fall
  • Work schedule adjustments

If you have been discriminated against by your employer due to a disability, stand up and fight discrimination. Contact employment law attorney Michelle Baker as soon as possible. Schedule your free consultation online or call (858) 452-0093 today.

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The Interaction Between Disability Benefits and Disability Law

Employee Discrimination , , , ,

Disability DiscriminationSometimes when an employee becomes injured they qualify for protections under state or federal disability law. However, this can present complications when the employee also seeks disability related benefits through state or private insurance. In a recent case the 9th Circuit Court of Appeals reviewed whether an employee who claims total disability for the purpose of disability benefits can also be protected under the Americans with Disabilities Act (ADA).

Smith v. Clark

In Smith v. Clark County School District a school employee, Smith, suffered a back injury. She then applied for disability benefits under Nevada’s Public Employee’s Retirement System (PERS) as well as medical benefits from her insurance.

Smith also applied for Family and Medical Leave Act (FMLA) leave. On Smith’s FMLA application her doctor stated that Smith was presently incapacitated and was unable to work until she received further notice by a doctor. Smith stated on her application for disability benefits under PERS that she was completely unable to work due to her injury.

However, during this time Smith also negotiated with the school over when she could return to work. Smith claimed that she could work as a literary specialist but not as a teacher. The district offered Smith a position as a teacher with accommodations, but not a literary specialist position. Smith declined this offer.

Smith then sued the school in federal court alleging violations of ADA for failing to provide her with reasonable accommodations for the literary specialist position. The court dismissed the lawsuit because Smith stated that she was permanently disabled, meaning she could not do the work.

The Ninth Circuit’s Decision

When the case reached The Ninth Circuit, they reversed the decision. The mere fact that Smith had made inconsistent statements in the PERS application was not seen as conclusive that she was totally disabled and could not perform essential job functions. In other words, the fact that Smith was totally disabled for the purposes of PERS disability benefits, but at the same time told the district that she could perform the duties of a literary specialist could not be used against her. The reasoning was because the claim for disability benefits under PERS did not take into consideration whether reasonable accommodations could make employment a possibility for Smith.

If you have experienced disability discrimination, you may be entitled to compensation. To learn more contact Michelle Baker at Baker Law Group, LLP. Schedule your free consultation today by calling (858) 452-0093.