In California, around 24% of adults (over 7 million people) live with some sort of disability. According to a 2018 Disability Status Report, 37.1% of working-age (21-64) adults with disabilities in California were actively employed, and another 8% were actively looking for employment. That amounts to well over two million disabled adults currently in the California workforce, with over half a million more searching for work. If you have a disability and work or are looking for employment, how to request accommodations and combat disability discrimination is vital – and that’s just what today’s blog is all about.
What Is a Disability in California?
The California Fair Employment and Housing Act (FEHA) requires employers with five or more employees (with the exception of religious associations or nonprofits) to provide accommodations for employees with disabilities. FEHA is generally more expansive than the federal Americans with Disabilities Act (ADA), meaning California employees with disabilities often have an easier time getting accommodations than employees in other states.
According to FEHA, there are two types of disabilities: Physical, and mental. FEHA gives the following definitions for each type.
Physical disabilities include any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity.
The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems.
A physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult.
When determining whether a person has a disability, an employer cannot take into consideration any medication or assistive device, such as wheelchairs, eyeglasses or hearing aids, that an employee may use to accommodate the disability. However, if these devices or mitigating measures limit a major life activity, they should be taken into consideration.
Physical disability also includes any other health impairment that requires special education or related services; having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss or health impairment known to the employer; and being perceived or treated by the employer as having any of the aforementioned conditions.FEHA, p.2.
Mental disabilities include any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity, or any other mental or psychological disorder or condition that requires special education or related services.
An employee who has a record or history of a mental or psychological disorder or condition that is known to the employer, or who is regarded or treated by the employer as having a mental disorder or condition, is also protected.
Additionally, workers with medical conditions, such as a diagnosis or medical history of cancer, or a genetic characteristic, are also entitled to reasonable accommodations under FEHA.FEHA, p.3.
What Is an Essential Job Function?
Employers have a legal duty to provide employees with disabilities with “reasonable accommodations.”
Using the disability definitions above, employers must judge whether an employee has a disability that requires accommodations. If an employee does not have a disability that is immediately apparent or fails to receive the accommodations they deserve, they can also request accommodations with their employer (more on that later).
Employers should enter an “interactive process” with an employee to determine what sort of accommodations they require. A “reasonable accommodation” is anything that helps employees perform the essential functions of their job.
A job function is essential if:
- The position exists to perform that function;
- The employer has a limited number of employees capable of performing that function; and
- The function is highly specialized or requires specific training.
If an employee with a disability cannot perform essential functions after receiving accommodations, the employer may fire that individual. Additionally, if providing accommodations would make an employer experience “undue hardship” (meaning it would be exceptionally difficult or expensive to facilitate) the employer may choose not to hire a disabled individual for that position.
What Are Reasonable Accommodations for Workers with Disabilities?
An accommodation is reasonable if:
- Providing it would not place an undue financial burden on the employer. Employers must take into account tax credits, deductions, and funding opportunities when calculating the cost of accommodations;
- The resources dedicated to accommodations would not negatively impact other employees at the workplace, or the business’s ability to conduct operations;
- It is appropriate considering the size and capacity of the business in question;
- It is consistent with the current operations, structure, and functions of the business; and
- It will not unduly impact the administrative or fiscal relationship of the facility or its geographical location.
Common examples of reasonable accommodations include:
- Ramps, lifts, or other means of making locations accessible to those with wheelchairs or mobility-related disabilities;
- Expanded time off to allow an employee to visit medical professionals;
- Allowing an employee to work from home if it makes managing a disability easier;
- Adjusting deadlines or work hours (within reason) to make them completable;
- Allowing an employee to bring an assistive animal or devices into the workplace;
- Eliminating non-essential functions of a position an employee may not be able to complete, as long as they can complete the essential functions;
- Providing an employee with materials curated to their disability, such as offering reading materials in braille for blind employees or a sign language interpreter for deaf workers;
- Reassigning the employee to another vacant position they can fill the essential functions of, if their current position is not adequate;
- Modifying training requirements, examinations, company policies, and company culture expectations to accommodate workers with disabilities;
- And more.
California offers expansive protections to workers with disabilities. If you aren’t sure whether an accommodation is reasonable, contact an employment lawyer – they can answer your questions.
Filing a Request for Reasonable Accommodation
The California Department of Fair Employment and Housing (DFEH) has a sample accommodation request you can fill out and give to your employer.
ACCESS THE SAMPLE ACCOMMODATION REQUEST.
Most accommodations requests should:
- Name the employee, their supervisor, and their current position;
- Detail what accommodations the employee is requesting, and the reason for that request;
- Detail how long the employee may need accommodations for;
- Provide evidence of the employee’s disability, typically in the form of signed letters from medical professionals and healthcare providers; and
- Document what steps an employer takes to implement accommodations after receiving the request;
At minimum. If your employer refuses to provide you with the accommodations you deserve, your accommodation request can serve as valuable legal evidence.
What Should I Do After Experiencing Disability Discrimination?
Unfortunately, many employees with disabilities experience discrimination in the workplace. Common examples of disability discrimination include:
- Refusing to hire an employee with a disability even though they can perform the essential functions of a job;
- Refusing to hire a worker who won’t submit to genetic testing;
- Firing an employee with a disability despite being able to provide them with reasonable accommodations;
- Firing an employee for receiving a medical diagnosis of a disability or condition;
- Paying employees with disabilities less than their colleagues;
- Refusing to adjust training materials for employees with disabilities;
- Refusing to offer reasonable accommodations, or mocking an employee for requesting accommodations.
If an employer refuses to provide you with accommodations, exercising your rights as an employee is vital. You could receive compensation for disability discrimination.
Employees who experience disability discrimination have 300 days to file a complaint with the DFEH or EEOC. If the DFEH or EEOC issues a right-to-sue letter to the employee, they have 90 days to file a claim or lawsuit. Since California laws typically offer more protections for individuals with disabilities, filing with the DFEH is often recommended, but you should speak with an attorney before making a decision.
If you file a suit, you must prove that:
- You have a disability;
- You could perform the essential functions of a job;
- Your employer discriminated against you in some way due to your disability or condition.
By successfully filing a discrimination suit against your employer, you could receive compensation for:
- Back pay (with interest), front pay, benefits, and income associated with promotions or career advancements you lost;
- Compensation for pain and suffering associated with the disability discrimination;
- Damages for emotional distress resulting from the discriminatory behavior.
At Wilshire Law Firm, we’re committed to providing disabled employees with the care and counsel they deserve. Contact us online or via phone at (800) 501-3011 to schedule a free, discreet consultation with our team about your case.