FEHA Obligations Continue to Trip Up California Employers

10.14.2021

Disability claims for retaliation, failure to accommodate and failure to engage in the interactive process continue to haunt employers in California. The complex web of laws protecting employees with disabilities makes managing leaves of absence and returning employees to their positions difficult.

Employees who are injured on the job often qualify as disabled under the Fair Employment and Housing Act (“FEHA”) and under the Americans with Disabilities Act (“ADA”), which trigger the employer’s obligation to engage in the interactive process. An employer’s obligation under FEHA and the ADA exists regardless of the employee’s classification in the workers’ compensation system. Therefore, even if an employee is classified as Temporarily Totally Disabled (“TTD”), or Temporarily Partially Disabled (“TPD”), it does not give an employer a free pass. Under the FEHA and ADA, an employer must initiate the interactive process once the employer knows that an employee has a physical disability, mental disability or medical condition and either the employee requests a reasonable accommodation or the employer becomes aware of the need for an accommodation. (2 Cal. Code Regs. Section 11069(b)). The employer must engage in a timely, good faith, interactive process with the employee to determine an effective reasonable accommodation. An employer has an obligation to reasonably accommodate an employee’s known physical or mental disability or medical condition unless undue hardship will result.

To satisfy the employer’s obligation to engage in the interactive process, employers should not rely on communications with the workers’ compensation carrier, but instead should contact the employee directly to determine whether the employee needs a reasonable accommodation.

Usually when engaging in the interactive process, employers will learn that the disabled employee has certain restrictions. Some employers in the past have chosen to outright refuse to offer light duty assignments to their employees, which forecloses any ability by the employee to return to the workforce until most, if not all, of the restrictions are removed. Under FEHA, employers are obligated to accommodate restrictions unless the accommodation would constitute an undue hardship. Of course, assessing what is an undue hardship for each employer requires an individualized analysis which includes a review of the financial and other costs, including disruption to business and other employees, required to provide the accommodation. Keep in mind, under FEHA or the ADA, there is no obligation to create a new position, including a temporary position, or to eliminate the essential functions of a position. However, both FEHA and the ADA provide that reasonable accommodation can include reassignment of an employee to a vacant position that the employee is qualified to perform. For example, some employers will offer light duty and let a welder return to work and just sweep up the warehouse— actually creating a new position they did not have before. Oftentimes, employers create these new positions in an effort to comply with the FEHA/ADA and to encourage employees to improve and return to the workforce. However, creating a new position or eliminating essential functions may open the door for an employee to later claim that the employer can provide the modified or alternative work on a permanent basis. It is very hard to prove that accommodating the employee long-term would constitute an undue hardship even though the short–term accommodation was not an undue hardship.

Other ways to trip up include limiting leaves under the FEHA/ADA to a specific time period or refusing to allow employees to return with restrictions. FEHA requires employers to look at each disabled employee’s issues on a case-by-case basis and accommodate restrictions. No uniform deadline can protect employers from liability.

A violation of FEHA/ADA can result in liability for lost income, emotional distress damages, payment of the employee’s attorneys’ fees and even punitive damages. Thus, devoting time and attention to the obligations outlined in the FEHA/ADA is important in order to avoid such potential liability.

For more information concerning these requirements, please contact one of the authors or attorneys in the Private Labor and Employment Group or visit our website at www.aalrr.com.