Don’t know where to start when accommodating a disabled employee? Below are nine things to know:
1. KNOW YOUR RESPONSIBILITY. Most employers have certain responsibilities when dealing with employees with medical conditions. Under California state law, (the FEHA) if you have 5 or more employees you need to follow those statutes regarding accommodating disabilities. Under federal law, (the ADA) if you employ 15 or more employees you must comply with those laws as well. Generally, California State law, the FEHA, gives employees more protection regarding accommodating disabilities than federal law.
Accommodating a Disabled Employee- Continued
2. KNOW WHAT KINDS OF MEDICAL CONDITIONS MAY REQUIRE ACCOMMODATION. The duty to accommodate can arise where the disability is mental and/or physical, real or even perceived. The disability must limit a major life activity such as walking, concentrating, lifting, working, etc. Some examples of possible covered disabilities: a diagnosis of Depression, Stress Disorder, Asthma, Diabetes, Cancer, etc. Some examples of where the legal definition of disability may not be met: having the Common cold or flu, sprains, bruises.
3. KNOW WHEN TO TALK ABOUT IT. If the employer is not aware of the disability and/or need for accommodation, the employee must request accommodation. On the flip side, if management knows about the medical situation, the employer must engage in an interactive process with the employee regarding a potential accommodation, possibly even when the employee doesn’t specifically ask for help.
4. KNOW WHAT THE INTERACTIVE PROCESS IS. The interactive process is the employer’s good faith effort to open a dialogue with an employee regarding a potential medical condition that they are facing. If appropriate, the employer needs to work with the employee to find ways to accommodate their him/her so that he/she can continue to work productively in spite of his/her medical condition. Both the employer and the employee must participate in this interactive process to determine if accommodation can reasonably be afforded.
5. KNOW WHAT NOT TO SAY. An employer should avoid asking the employee specific questions about an employee’s medical condition to avoid a potential invasion of medical privacy. The employee may offer the information voluntarily, of course.
6. KNOW WHAT TO ASK FOR. An employer may reasonably require a doctor’s note – validating the impairment and describing what tasks the employee can or cannot perform and what accommodating measures might be helpful.
7. KNOW WHAT A REASONABLE ACCOMMODATION IS. A reasonable accommodation can be almost anything that assists the employee in performing his/her job. Examples include a temporary transfer to a less strenuous job, a change in work hours, time off work, ergonomic aides such as a custom chair, a move to a quieter office, etc.
8. KNOW WHAT A REASONABLE ACCOMMODATION IS NOT. An employer is not required to accommodate where the accommodation would impose an “undue hardship” on the operation of the business. The employer therefore should evaluate whether the accommodation is feasible, or if it will pose an undue hardship for its business. An undue hardship is typically determined by a multi-factor test which can includes factors such as: the nature and size of the accommodation sought, financial resources of the business, and the effect it would have on those financial resources, size of its workforce, etc.
9. SEEK LEGAL ADVICE WHEN ALL ELSE FAILS
If an employer is unable to accommodate a disabled employee, or a disabled employee is not satisfied by their accommodations, seek legal counsel from an experienced Employment Law Attorney.
Contact Freeland Law APC for a free 30-minute consultation with Michael Freeland, experienced employment lawyer serving La Mesa, California.
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