by James W. Ward, J.D.; Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
Disability discrimination claims are a huge source of litigation in courts, and they're one of the top complaints received by the Department of Fair Employment and Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC) each year, so it’s good for employers to periodically review this complex area of law and their policies to ensure they’re in compliance and observing best practices — especially when it comes to reasonable accommodations.
And in addition to the myriad circumstances in which employers must consider accommodations, the COVID-19 pandemic has given rise to some unique situations. For instance, some employees exhausted their family and medical leaves taking care of themselves and/or family members. When they ask for more time off with no leave in the bank, there may be circumstances under which employers may grant them leave as a reasonable accommodation.
Another issue relates to the remote and hybrid work arrangements adopted during the pandemic: Employers trying to bring employees back to the office are receiving requests from employees wishing to continue remote work as an accommodation. Over the last two years, the analysis of these requests has had to change given not only the rule-, guideline- and mandate-shifting related to the pandemic, but also the proliferation of such technologies as video conferencing, cloud-based collaboration tools and the like — all of which allow for easier remote work.
Read on for a review of the general legal obligations as far as accommodating individuals with disabilities, and how those principles apply to circumstances in which telework or a leave of absence may — or may not — be a reasonable accommodation.
Under California's Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA), covered employers who know of an employee’s or applicant’s disability must reasonably accommodate that disability — unless the employer can demonstrate that the accommodation would impose an undue hardship. Although the federal and state laws are very similar, California’s FEHA provides broader protection than the federal law.
Under the FEHA, a disability is a physical or mental impairment that limits a major life activity. A “reasonable accommodation” is any modification or adjustment in a job, employment practice or work environment that allows an individual with a disability to enjoy an equal employment opportunity. It’s also any modification or adjustment that enables an employee or applicant to perform essential job functions, or enjoy equivalent employment benefits and privileges that similarly situated employees without disabilities enjoy.
Employers have an affirmative duty to accommodate disabled workers; this duty is triggered when the employer becomes aware of the potential disability issue, which can happen in several different ways.
The most common way employers become aware of an employee’s disability is when an employee requests an accommodation — but it’s important to note that an employee doesn’t have to use any magic words, i.e., invoke any statutes or use specific words such as “disability” or “reasonable accommodation,” to make the employer aware of their need. Nor do they have to submit anything in writing. If an employee informs their manager/supervisor that they’re having a hard time doing their job because of some kind of impairment that might be a disability, that is likely enough to constitute a request for accommodation.
In some circumstances, employers can learn about a disability issue through observation or a third party, such as another employee, or because the disabled employee has exhausted a leave of absence and their health care provider indicates further accommodation is necessary.
In any case, when the employer becomes aware of a disability-related issue, the employer must engage in a timely, good-faith interactive process with the employee, which essentially includes communication with the employee to identify job-related limitations, if any, and explore whether the employee needs reasonable accommodation to perform the job's essential functions and what those accommodations might be.
When the disability or need for accommodation isn’t obvious, employers can ask an employee for reasonable documentation from a medical provider about the job-related limitations and potential accommodations; however, employers can’t ask for information regarding the disability's underlying cause, including a medical diagnosis or unrelated documentation (e.g., complete medical records).
The interactive process requires an individualized assessment of both the job at issue and the individual's specific limitations related directly to the need for reasonable accommodation. Due to the process' individualized nature, reasonable accommodations can take on a wide variety of forms, including, but not limited to, job restructuring, modifying work schedules, providing equipment or additional training, permitting alteration of when or how an essential function is performed, reassignment to a vacant position for which the individual is qualified, providing a leave of absence, or allowing the employee to work from home.
Remember, employers are required to make only “reasonable” accommodations. Employers don’t, for example, have to eliminate or modify the essential functions of the job or create a new position for the employee. They also don’t have to provide an accommodation that would result in an undue hardship, which is an action requiring significant difficulty or expense to the employer when considering all circumstances.
Additionally, if multiple potentially effective accommodations are identified, the employer doesn’t have to implement the employee-preferred accommodation; the employer gets to choose which accommodation to use.
The reasonable accommodation obligation is an ongoing duty and may arise anytime a person’s disability or job changes.
As we move forward from the COVID-19 pandemic and employers continue bringing remote workers back to the workplace, it’s clear that some employees would prefer to stay remote or have a hybrid arrangement. While whether to bring people back to the office is generally the employer’s decision, they may have to make some exceptions for employees requesting remote work accommodations for disabilities — of which there are an increasing number of requests.
Pre-pandemic, the prevailing viewpoint was that, in most circumstances, individuals couldn’t carry out the essential functions of their jobs while working remotely. And in-person, in-office attendance itself often was considered an essential job function. Since the law doesn’t require employers to change the essential functions of a job, it was uncommon to allow remote work as an accommodation.
The COVID-19 pandemic, however, significantly changed the analysis. Some jobs, of course, still require in-person attendance, but many employees who've been working from home throughout the pandemic have performed their job duties and responsibilities satisfactorily, which makes the issue more complex.
When an employee requests remote work for something that might be a disability, employers should engage in the interactive process with the employee and carefully evaluate the factual circumstances on a case-by-case basis. Employers should work with the employee to determine if the individual is disabled, including obtaining appropriate documentation of any job limitations the employee may have.
Given the circumstances, and how things may have changed during the pandemic, employers will need to determine whether remote work is a reasonable accommodation by considering whether in-person work is still an essential part of the job. Start by asking these questions:
Keep in mind that the EEOC said an employer who granted employees telework because of COVID-19 doesn't have to automatically grant telework as an accommodation to every employee with a disability who requests to continue the arrangement. If there's no disability-related limitation that requires teleworking, the employer doesn't have to provide it as an accommodation.
EEOC guidance also provides that, to the extent an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request — after the workplace reopens — to continue telework as a reasonable accommodation doesn't have to be granted if it requires continuing to excuse the employee from performing an essential function. Neither the ADA nor the FEHA require an employer to eliminate an essential function as an accommodation.
It's worth noting that the EEOC guidance on excusing teleworking employees from performing essential functions is only guidance, not law, and it was last updated in September of 2020. If an employee has continued to work remotely into 2022 under that arrangement, it may raise the question of whether the functions from which they were excused remain essential.
Employers should remember that they don't necessarily have to choose the employee-preferred accommodation. If another reasonable accommodation would be effective and would allow the employee to perform the essential functions of their job, the employer can choose the alternative accommodation.
Employers who deny a remote work request should be prepared to explain why remote work isn’t optimal — whether it was for technological reasons, performance reasons, decreased productivity, etc. Employers who grant remote work as an accommodation should continue to check in with the employee to see how the accommodation is working. If an adjustment to the accommodation is required and reasonable, implement the revised accommodation with help from HR or legal counsel, and document the revised accommodation.
Though many accommodations take the form of workplace aids or modifications, a leave of absence may, in some circumstances, be the appropriate accommodation for a disabled worker.
California’s disability regulations make clear that when an employee can't perform the job's essential functions, or otherwise needs time away from the job for treatment and recovery, a reasonable accommodation in some instances may include holding a job open for an employee on a leave of absence or extending a leave of absence beyond the time provided by a mandatory leave law (such as the federal Family and Medical Leave Act [FMLA] or the California Family Rights Act [CFRA]) — provided that the leave will likely be effective in allowing the employee to return to work at the end of the leave and doesn’t create an undue hardship.
This issue may come up more frequently this year because over the past year of the pandemic, some employees have exhausted their family and medical leave and others may not be eligible for such leave because they recently switched jobs. Depending on the circumstances, an employee’s medical condition or impairment for which they might otherwise have taken family and medical leave could also constitute a disability under the FEHA. So, even with no family and medical leave in the bank, there may be circumstances under which employers should consider granting a leave of absence as a reasonable accommodation. And even if the condition wouldn’t qualify for family and medical leave, a leave of absence may still be a reasonable accommodation option for employers and employees.
For instance, under the FEHA, transient or temporary conditions may be disabilities, depending on the circumstances. A leave of absence may be an appropriate accommodation for someone who, for example, needs time off to receive treatment for depression or anxiety, or to recover from an injury.
In any case, when an employee indicates they’re having a hard time with their job due to an impairment, the first thing employers should do is to engage in the interactive process to determine whether the employee is disabled and, if so, to explore potential reasonable accommodations. If the employee is requesting leave for something that would normally qualify for family and medical leave but the employee doesn’t have any, employers should remember that a leave of absence is one possible reasonable accommodation available to them, provided that:
Employers who grant a leave of absence as an accommodation should continue to check in with the employee to discuss how the accommodation is working. Unlike the CFRA, the FMLA and other forms of statutory leave, the FEHA doesn’t have a fixed limit on the amount of leave required as a reasonable accommodation; it depends on the circumstances. The ultimate questions are whether the leave will likely be effective in allowing the employee to return and whether the leave creates an undue hardship.
Courts, however, have said that employers don’t need to hold a position open indefinitely and the law specifically provides that, for reasonable accommodations extending beyond one year, employers may ask for medical documents substantiating the need for continued reasonable accommodations on a yearly basis.
Considering and implementing reasonable accommodations is often complex, perhaps more so because of the COVID-19 pandemic. For employers, even during a pandemic, the process remains the same — engage in the interactive process, working with the employee and considering each request based on its unique circumstances.
Employers should consider consulting with legal counsel about questions regarding their specific circumstances or before denying any accommodation request.
There are many best practices for employers related to reasonable accommodations, including that they should:
