Orange County Branch Newsletter

November 2015

Law and CE News

The Burdens and Limits of Reasonable Accommodation

There comes a time when almost every employer is faced with accommodating an employee’s needs after an injury or illness. In these circumstances, the law requires employers to engage in an "interactive process" to identify and implement reasonable accommodations for a known disability unless doing so would produce "undue hardship" to the employer’s business operations. Although the phrase "reasonable accommodation" seems intuitive, the actual implications are often more onerous than an employer might initially assume. Under California law, a "reasonable accommodation" is a modification or adjustment to the work environment that enables the employee to perform the "essential functions of the job he or she holds or desires." This standard is both broad and vague, and can cause headaches for employers trying to meet their legal obligations.

So what are "essential functions?" Essential functions are fundamental job duties of the employment position that the employee holds or desires. An essential function can generally be found where the reason the position exists is to perform a specific function; where there are only a limited number of employees who can perform the function; or where the employee was hired for his or her expertise or ability to perform the function. In short, an essential function is not easily transferrable to other employees or able to be performed in an alternative way. In the case of Lui v. City and County of San Francisco, for example, Lui, a police officer, suffered a heart attack and, as a result, could no longer engage in strenuous physical activity. Faced with the prospect of a forced retirement, Lui argued that although he could not engage in certain physical activities, he could still perform administrative work and thereby keep his job. The Court, however, adopted a broad perspective and held that a police officer’s duties inherently require a high degree of physical activity given the nature and variety of emergency circumstances in which a police officer must respond.

So what does a "reasonable accommodation" require? Reasonable accommodation of an essential function requires that the employer engage in a good-faith, ongoing, and interactive process with the employee to proactively identify and explore potential alternatives to address the known or suspected disability. Reasonable accommodations can include job restructuring or the alteration of when or how an essential function is performed to accommodate the employee’s disability.

Situations often arise, however, where the employee cannot perform the essential functions of his or her position even with an accommodation. In such cases, employers are generally required to offer the disabled employee reassignment to a "comparable" or "lower graded" vacant position if the employee is qualified. In 2015, the California Court of Appeal in the case of Nealy v. Santa Monica held that employers are not required to eliminate or excuse performance of an essential function in order to accommodate a disabled employee, nor are employers required to create an entirely new position to accommodate the disabled employee. Nealy, a city truck driver, injured his knee on the job and could no longer lift heavy items onto the truck. The city initially reassigned him to a groundskeeper position. Complications to Nealy’s injury prevented him from successfully carrying out the new position’s essential functions as well. The city again tried to accommodate Nealy’s disability but Nealy was not qualified for any other alternative positions. Faced with the prospect of a forced retirement, Nealy sued the city on the grounds that he could still operate a truck and that the city could simply assign someone else to lift the heavy items if necessary. The Court recognized that having an auxiliary lifter on standby was unreasonable, as it would create significant costs and logistical problems – if the other drivers all had to perform significant physical activities, so did Nealy. The Court also agreed that while a temporary leave of absence pending the opening of a suitable position was a reasonable accommodation, the city was not required to provide its employees with an indefinite leave of absence.

As the above cases illustrate, every accommodation situation is unique and entails its own challenges. The key take away is that once an employer learns of an employee’s disability, the employer has the burden of engaging the employee on an ongoing basis to identify possible accommodations, but only within reason. An employer does not have to create new or special employment categories that impose a significant burden on the work environment or the business. Because the reasonableness of every accommodation must be viewed in light of each set of circumstances, employers must proactively engage the employee to identify potential workplace arrangements that will successfully accommodate the disability. In every scenario, thorough and consistent communication and documentation of all of the company’s accommodation efforts is critical to preventing and, ultimately, defending against a potential discrimination claim.

Should you have any questions or require additional information regarding an employer’s rights and obligations in this area, please feel free to contact Michael B. McDonald and Ryan J. Kohler.

Ryan J. Kohler  | [email protected] 

Michael B. McDonald | [email protected]

Collins Collins Muir + Stewart LLP

Nothing contained in this article should be considered legal advice. Anyone who reads this article should consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.