by Bradley J. Muldrow
Staff Attorney
The Therapist
March/April 2020

People with disabilities sometimes face unique challenges when interviewing for jobs and performing certain job duties as employees. By developing employment practices that address these challenges, employers can make their businesses attractive to a larger pool of highly qualified job candidates, some of whom may have disabilities, and comply with applicable state and federal employment regulations. This article will present California employers with an overview of their duty to reasonably accommodate the disabilities of employees and job applicants. The article also includes helpful resources to assist employers in complying with this duty.

LAWS GOVERNING THE DUTY TO PROVIDE REASONABLE ACCOMMODATION

Different Laws for Different Employers
The chart below provides an overview of the primary federal and state laws governing employers’ duty to provide reasonable accommodation to employees and job applicants (“applicants”) with disabilities in appropriate circumstances:

Law	Federal or State	Covered Employers
Americans with Disabilities Act (“ADA”)i	Federal	Private employers throughout the United States with 15 or more employees State and local government employers throughout the United States
Rehabilitation Act of 1973 (the "Rehabilitation Act")ii	Federal	Federal government employers throughout the United States Federal contractors throughout the United States Private employers throughout the United States that receive certain forms of federal financial assistance
Fair Employment and Housing Act (the "FEHA")iv	State (California)	Private employers in California with five or more employees California state government employers California city government employers

ⁱ42 U.S.C.A. § 12111(5)(a); See the Department of Justice’s online resource “Fighting Discrimination in Employment Under the ADA”: https://www.ada.gov/employment.htm
ⁱⁱSee 29 U.S.C. § 701 et seq.
ⁱⁱⁱSee 29 U.S.C. § 701 et seq. Gov. Code, § 12926(d); Gov. Code, § 12940(m)(1)

Although the ADA and the Rehabilitation Act offer employees and applicants (collectively “workers”) with disabilities significant protections against ability-based discrimination, California’s FEHA generally affords a broader level of protection to these workers. Consequently, the FEHA typically imposes stricter compliance standards on California employers than the ADA and Rehabilitation Act.

Employers should consider the following when determining which laws apply to their work settings:

California Employers with Less Than Five Employees are Not Immune from Liability for Ability-Based Harassment
FEHA regulations prohibiting workplace harassment apply to all employers in California, regardless of how many people they employ. Accordingly, although the owner of a private practice in California with three employees is not required to reasonably accommodate their employees’ disabilities, the owner is obligated to ensure their employees are not subjected to ability-based abuse or harassment.

Many California Employers Are Subject to State and Federal Laws Governing the Duty to Provide Reasonable Accommodation
A private employer in California with 19 employees, for example, is subject to both the FEHA and the ADA. That said, California employers generally exceed the less rigorous compliance requirements of the ADA and the Rehabilitation Act by meeting the stricter compliance standards of the FEHA. For this reason, and because the FEHA regulates a larger number of California employers than the ADA and the Rehabilitation Act, this article will focus exclusively on FEHA regulations governing the duty to provide reasonable accommodation.

Phone Numbers for Consultation on ADA, Rehabilitation Act, and FEHA Need Guidance on ADA or Rehabilitation Act Compliance? The Job Accommodation Network (“JAN”), a technical assistance resource sponsored by the U.S. Department of Labor’s Office of Disability Employment Policy, offers free, confidential consultation on compliance with the ADA and the Rehabilitation Act. JAN representatives are available to consult via phone Monday through Friday from 9 am to 6 pm Eastern: 800-526-7234 (Voice) or 877-781-9403 (TTY). JAN also offers consultation via text (at 304-216-8189), Skype (at “janconsultants”), and email (through the following link: https://askjan.org/JANonDemand.cfm). Need Guidance on FEHA Compliance? The California Department of Fair Employment and Housing (the “DFEH”), the agency responsible for enforcing the FEHA, offers free, confidential FEHA compliance consultation via phone Monday through Friday from 8 am to 5 pm Pacific: 800-884-1684 (voice), 800-700-2320 (TTY), or California’s Relay Service at 711. DFEH representatives also respond to FEHA compliance questions via email (at contact.center@dfeh.ca.gov) within two business days.

THE DUTY TO PROVIDE REASONABLE ACCOMMODATION

Which Disabilities Are Employers Required to Reasonably Accommodate?
The FEHA requires employers to provide reasonable accommodation for workers’ physical disabilities, mental disabilities, and medical conditions, where necessary.

Physical and Mental Disabilities
The duty to provide reasonable accommodation applies where physical or mental conditions (e.g. PTSD, certain learning disabilities, etc.) limit workers’ abilities to engage in “major life activities.” The duty also applies where physical conditions affect specific systems within workers’ bodies (e.g. their neurological, circulatory, and immunological systems).

“Major Life Activities”
The term “major life activities” is broadly construed, under the FEHA, and includes “physical, mental, and social activities, especially those life activities that affect employability or otherwise present a barrier to employment or advancement.” “Such activities include, but are not limited to: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others,” working, and operating major bodily functions (e.g. bladder, respiratory, etc.).

A worker’s physical or mental condition limits their ability to engage in a major life activity where the condition “makes the achievement of the major life activity difficult,” regardless of the impact of mitigating measures, such as medications and assistive devices. To better understand these concepts, consider the following example:

Mitigating Measures: An Illustration
Andres Associate is employed by a California nonprofit with more than five employees (i.e. a FEHA-regulated work setting). Andres has a physical condition that makes it difficult for him to see objects or read text from a distance. However, he does not experience these difficulties when he wears his glasses. Does Andres have a disability, according to the FEHA?

Yes. Andres has a physical condition that makes it difficult for him to engage in major life activities (i.e. “seeing” and “reading”). Accordingly, his physical condition constitutes a disability, under the FEHA, regardless of the mitigating impact of his glasses.

Medical Conditions
The FEHA also requires employers to reasonably accommodate workers who have one or both of the following medical conditions: (1) “health impairment[s] related to or associated with a diagnosis of cancer or a record or history of cancer,” or (2) “genetic characteristics” (e.g. genes, chromosomes, or inherited characteristics, etc.) that are known to cause or increase the risk of developing a disease or disorder.

What are Reasonable Accommodations?
A reasonable accommodation is a “modification or adjustment” to particular job duties or to a work environment that is:

1. “effective in enabling an applicant with a disability to have an equal opportunity to be considered for a desired job;” or
2. “effective in enabling an employee to perform the essential functions of the job the employee holds or desires;” or
3. “effective in enabling an employee with a disability to enjoy equivalent benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.” ¹⁰ 

Accommodations that may meet these requirements in appropriate circumstances include, but are not limited to: (1) making the employer’s existing facilities readily accessible to and usable by workers with disabilities, (2) providing assistive aids and services such as qualified readers or interpreters, (3) providing an employee with a part-time or modified work schedule, (4) permitting an employee to work from home, and (5) providing a paid or unpaid leave of absence for treatment and recovery.¹¹

Leave of Absence as a Reasonable Accommodation
In some instances, an employee’s disability may temporarily prevent them from being able to perform the essential functions of their job. For example, an employee might sustain a physical injury requiring several weeks of bed rest, or an employee’s major depressive disorder may require treatment at a residential or in-patient facility. In such situations, reasonable accommodation of the employee’s disability may include a leave of absence if the leave is “likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.”¹² However, an employer cannot require an employee to take a leave of absence if the employee can work with a different reasonable accommodation.¹³

The law does not require employers to provide employees with indefinite leaves of absence as reasonable accommodations.¹⁴ The terms of an employee’s leave of absence (e.g. duration, paid or unpaid, etc.) may be set by federal laws, such as the Family Medical Leave Act (the “FMLA”), or state laws, such as the California Family Rights Act (the “CFRA”).¹⁵ Employer policies may also address the terms of their employees’ leaves of absence. However, leave of absence policy provisions that contradict state or federal law are not enforceable.

Reasonable Accommodation During the Interview Process
The FEHA prohibits employers from discriminating against applicants on the basis of disability¹⁶ and requires employers to “make reasonable accommodation to the needs of applicants with disabilities in interviewing situations.”¹⁷ Such accommodations may include providing a qualified interpreter for a deaf applicant’s interview, holding an interview in a location that is accessible to an applicant who utilizes a wheelchair, etc.¹⁸

In practice, applicants with disabilities often have a difficult time communicating their need for accommodations to prospective employers, and prospective employers often find it difficult to arrange for the provision of accommodations during fast-paced hiring cycles. According to the Job Accommodation Network (“JAN”), it is best practice for employers to include “accommodation statements” within their job applications and recruiting materials, containing the following or similar language:

“If you require reasonable accommodation in completing this application, interviewing, completing any pre-employment testing, or otherwise participating in the employee selection process, please direct your inquiries to….”¹⁹

Accommodation Resources Need Help Identifying Appropriate Accommodations for a Worker with a Disability? JAN’s website allows users to explore various accommodation options for workers with disabilities using its Searchable Online Accommodation Resource (“SOAR”) database: https://askjan.org/soar.cfm. JAN also offers an online Workplace Accommodation Toolkit that provides helpful guidance and best practices for reasonably accommodating workers’ disabilities: https://askjan.org/toolkit/The-JAN-Workplace-Accommodation-Toolkit.cfm. Employers can also consult with JAN representatives on this issue using the contact information provided earlier in this article. Note: Although the California Department of Fair Employment and Housing (the “DFEH”) recommends JAN as a resource for determining whether accommodation of workers’ disabilities is possible42, JAN does not offer guidance on FEHA compliance. Accordingly, while JAN’s resources and consultation services can help California employers identify suitable accommodations for workers with disabilities, these employers should contact the DFEH if they have questions regarding their legal responsibilities, under the FEHA (using the contact information provided earlier in this article).

Responding to Workers’ Requests for Accommodation
When an employer needs to identify or implement an effective reasonable accommodation for a worker’s disability, the FEHA requires the employer to engage the worker in an “interactive process.” This term refers to “timely, good faith communication” between the employer and the worker exploring whether reasonable accommodation of the worker’s disability is necessary (e.g. for the worker to perform the essential functions of their job, participate in a job interview, etc.). If accommodation is necessary, the employer and worker must also use the interactive process to identify potential accommodations that can meet the worker’s needs. In some instances, the nature of the worker’s disability or other circumstances will make it necessary for the worker’s care custodian, attorney, or other representative to assist or advocate for the worker during the interactive process.²³

When Are Employers Required to Initiate Interactive Processes?
Employers are required to initiate timely, good faith interactive processes upon receiving accommodation requests from workers with disabilities.²⁴ However, the law also requires employers to initiate interactive processes when they become aware of workers’ potential need for reasonable accommodation.²⁵ Under the FEHA, an employer can become aware of a worker’s potential need for reasonable accommodation through observation or through information provided by a third party (e.g. a supervisor, co-worker, or representative of the worker).²⁶

The FEHA also provides that an employer has awareness of an employee’s potential need for reasonable accommodation where: (1) the employee has exhausted all available leave of absence benefits, and (2) the employee, or the employee’s medical provider, informs the employer that further accommodation is necessary for the employee to recuperate or perform their job duties.²⁷

Requiring Workers to Provide “Reasonable Medical Documentation”
An employer may require a worker requesting accommodation to provide “reasonable medical documentation” if the worker’s need for accommodation is not obvious.²⁸ The law defines “reasonable medical documentation” as documentation sufficient to verify “the existence of [a worker’s] disability and the need for reasonable accommodation.”²⁹ Such documentation may describe the physical or mental limitations affecting the worker’s ability to engage in major life activities if that information is necessary to advance the interactive process.³⁰ However, the FEHA does not require workers to produce medical documentation that discloses the nature of their disabilities.³¹

For instance, suppose an employee seeks a leave of absence as a reasonable accommodation for her panic disorder. As part of the interactive process, her employer may require her to produce a letter from her psychiatrist, general practitioner, or other medical provider verifying that she has a mental condition preventing her from performing the essential functions of her job, thereby requiring a leave of absence. However, her employer may not require her to produce medical documentation identifying her diagnosis or otherwise disclosing the nature of her condition.

Where supplemental medical information is required, an employer must inform the worker of the specific supplemental information the employer needs and provide a reasonable amount of time for the worker to produce the information.³²

Confidentiality of Medical Information and Records Provided During the Interactive Process
Employers have a duty to preserve the confidentiality of medical information and records provided by workers as part of the interactive process. To comply with this requirement, employers must: (1) maintain medical information and records obtained during the interactive process separately from workers’ personnel files, and (2) keep such medical information and records confidential, subject to the following exceptions:

Exception 1: Employers may provide information to supervisors and managers of workers with disabilities pertaining to restrictions on the workers’ duties and reasonable accommodations the workers require.

Exception 2: Where appropriate, an employer may inform first aid and safety personnel that a worker has a condition that may require emergency treatment.

Exception 3: Employers must provide relevant information to government officials investigating FEHA compliance, upon request.³⁴

Consulting Experts
Where appropriate, the FEHA requires employers to consult with experts to assess accommodation requests.³⁵ Accordingly, it may be prudent for employers to contact JAN (using the contact information provided earlier in this article), or similar expert services where employers are not familiar with specific accommodations requested by workers or if the employers do not know which accommodations can effectively meet workers’ needs. Such services can provide employers with valuable information regarding aids and services often used to accommodate workers’ disabilities, the nature and cost of requested accommodations, best practices for implementing particular accommodations, etc.

Additionally, consulting such services prior to denying a worker’s request for a specific accommodation can reduce an employer’s risk of liability for failing to demonstrate good faith during the interactive process.

Compliance Tip 1: Employers Are Not Required to Immediately Approve or Deny Accommodation Requests
Employers often feel pressured to immediately approve accommodation requests to avoid potential lawsuits, or immediately deny such requests to avoid the potential cost of accommodation. While liability and cost-related fears are understandable, employers should not approve or deny accommodation requests without due consideration.

The FEHA does not proscribe a time limit for reviewing accommodation requests or completing the interactive process. The law more generally requires employers to respond to accommodation requests by initiating timely interactive processes and demonstrating good faith throughout those processes.

Compliance Tip 2: Establish Policies and Procedures for Complying with the Duty to Provide Reasonable Accommodation
Such policies and procedures may address:

1. How workers should submit their requests for accommodation (e.g. in writing, via email, to a particular staff member, etc.);
2. A timeline for the employer to initiate the interactive process (e.g. a certain number of business days following receipt of requests for accommodation, etc.);
3. Procedures for the interactive process (e.g. an initial in-person meeting and follow up phone meetings as necessary, etc.); and
4. Measures to preserve confidentiality of medical information and records provided by workers.

When developing new workplace policies, employers should consult with attorneys specializing in employment law to ensure the policies comply with applicable laws and fully address the employer’s needs. Additionally, if an employer would like to require workers to submit accommodation requests in writing, the California Department of Fair Employment and Housing (the “DFEH”), which enforces the FEHA, provides a sample accommodation request form on its website.³⁶

Tax Incentives for Employing People with Disabilities According to California’s Employment Development Department (the “EDD”), the following tax incentives are available to employers of people with disabilities: Work Opportunity Tax Credit (“WOTC”) Available to employers who hire individuals from certain targeted groups by offering them a federal income tax credit. The WOTC can reduce an employer’s federal tax liability by up to $9,600 per new hire. Disabled Access Credit Helps small businesses cover the cost of making their businesses accessible to persons with disabilities. The maximum amount of the credit is $5,000. Architectural and Transportation Tax Deduction Businesses may take an annual deduction of up to $15,000 for expenses incurred to remove architectural and transportation barriers to persons with disabilities and the elderly.43

Exception to the Duty to Provide Reasonable Accommodation
The FEHA requires employers to provide reasonable accommodation for workers with disabilities unless the employer “can demonstrate, after engaging in the interactive process, that the accommodation would impose an undue hardship.”³⁷ The law defines an undue hardship as “an action requiring significant difficulty or expense incurred by an employer or other covered entity, when considered under the totality of the circumstances in light of” various factors, including: (1) the nature and cost of the proposed accommodation (taking into consideration any available tax credits, tax deductions, or outside funding), (2) the overall financial resources of the employer, and (3) the nature of the employer’s operations.³⁸

Employers should note that whether the provision of an accommodation would present an undue hardship is a factual matter requiring a legal determination. Prior to denying a worker’s request for accommodation based on this exception, an employer should consult with a DFEH representative (using the contact information provided at the beginning of this article) or a private attorney specializing in employment law.

Compliance Tip 3: Consider Purchasing Employment Practices Liability Insurance
Professional liability policies do not cover employment discrimination claims, such as failure to provide reasonable accommodation claims, and not all general liability policies cover such claims. Employers who do not have liability coverage for employment discrimination lawsuits should strongly consider purchasing employment practices liability insurance, also known as “EPLI.”

Conclusion
Employers can develop more inclusive work environments and reduce their risk of liability by familiarizing themselves with their duty to provide reasonable accommodation. Where appropriate, employers should consult with private attorneys specializing in employment law and expert services, such as JAN, when evaluating workers’ accommodation requests.

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Brad Muldrow, JD, is a staff attorney for CAMFT. He also serves as a member of Disability Interest Group (“DIG”), a San Diego County Bar Association subcommittee dedicated to promoting the interests of people with disabilities in the legal field. Brad is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes

¹ Id.
² See the California Department of Fair Employment and Housing reference page “Employees and Job Applicants are Protected from Bias”: https://www.dfeh.ca.gov/employment-2/; See also the California Department of Justice’s practice guide “Legal Rights of Persons with Disabilities” at pg. 1: https://oag.ca.gov/sites/all/files/agweb/pdfs/consumers/disabled_bookmarks.pdf?
³ See Gov. Code, § 12940(m)(1)-(2) and (n)
⁴ Cal. Code Regs., tit. 2, § 11065(d)
⁵ Cal. Code Regs., tit. 2, § 11065(d)(2)
⁶ Cal. Code Regs., tit. 2, § 11065(l)
⁷ Cal. Code Regs., tit. 2, § 11065(l)(1) and (2)
⁸ Cal. Code Regs., tit. 2, § 11065(l)(3)
⁹ Gov. Code, § 12926(i)
¹⁰ Cal. Code Regs., tit. 2, § 11065(p)(1)
¹¹ Cal. Code Regs., tit. 2, § 11065(p)(2)
¹² Cal. Code Regs., tit. 2, § 11068(c)
¹³ Id.
¹⁴ Id.
¹⁵ Id.
¹⁶ Cal. Code Regs., tit. 2, § 11064(b)
¹⁷ Cal. Code Regs., tit. 2, § 11070(c)
¹⁸ Id.
¹⁹ See the “Tools for Recruiting and Hiring Managers” section of JAN’s Workplace Accommodation Toolkit: https://askjan.org/toolkit/
²⁰ Cal. Code Regs., tit. 2, § 11069(a)
²¹ Id.; Cal. Code Regs., tit. 2, § 11065(j); tit. 2, §11070(c)
²² Id.
²³ Id.
²⁴ Cal. Code Regs., tit. 2, § 11069(b)
²⁵ Id.
²⁶ Id.
²⁷ Id.
²⁸ Id.
²⁹ Id.
³⁰ Id.
³¹ Id.
³² Cal. Code Regs., tit. 2, § 11069(c)
³³ Cal. Code Regs., tit. 2, § 11069(g)
³⁴ Id.
³⁵ Id.
³⁶ The DFEH’s sample request for reasonable accommodation form can be accessed online:
https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/Request4ReasonableAccommodationPackage.pdf
³⁷ Cal. Code Regs., tit. 2, § 11068(a)
³⁸ Cal. Code Regs., tit. 2, § 11065(r)
³⁹ 42 U.S.C.A. § 12111(5)(a); See the Department of Justice’s online resource “Fighting Discrimination in Employment Under the ADA”: https://www.ada.gov/employment.htm
⁴⁰ See 29 U.S.C. § 701 et seq.
⁴¹ Gov. Code, § 12926(d); Gov. Code, § 12940(m)(1)
⁴² See the list entitled “Other Reasonable Accommodation Resources” on the DFEH’s reasonable accommodation information webpage: https://www.dfeh.ca.gov/reasonableaccommodation/
⁴³ See the EDD’s “Tax Credits/Incentives” webpage under “Resources to Save You Money”:
https://www.edd.ca.gov/Jobs_and_Training/Tax_Credits_Incentives.htm ; See also the U.S. Equal Employment Opportunities Commission’s “Facts

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About the Americans with Disabilities Act” under the section entitled “Federal Tax Incentives to Encourage the Employment of People with Disabilities and to Promote the Accessibility of Public Accommodations”: https://www1.eeoc.gov//eeoc/publications/fsada.cfm?renderforprint=1

This article is not intended to serve as legal dvice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.