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Disability Discrimination in the Workplace: When to Call an Employment Lawyer

California disability laws are intended to allow persons with disabilities the opportunity for employment. To meet this goal, California’s laws have historically offered greater protection to employees than federal law. Employers must provide reasonable accommodation for those applicants and employees who, because of their disability, are unable to perform the essential functions of their job. Employers must engage in a timely, good faith interactive process with applicants or employees in need of reasonable accommodation. If you feel your employer has not lived up to their end of the bargain with avoiding disability discrimination in the workplace, it may be time to call a lawyer.


Disabled Person in Wheelchair at Work

 
Workplace Disability Discrimination – What Is A “Disability”

The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” However, under California law, disability is defined as an impairment that makes the performance of a major life activity “difficult.” Thus, under California law, persons with a wide variety of diseases, disorders or conditions would be deemed to have a disability who, under the definitions set forth in the ADA and the United States Supreme Court’s narrow interpretations of that statute, might not be considered “disabled” and therefore denied protection.

California’s Fair Employment and Housing Act (FEHA) basically defines two categories of disability: mental disability and physical disability. Each category contains its own specific definitions. Additionally, under the FEHA, an employee with a “medical condition” is also entitled to accommodation.

What are ways those classified as disabled may feel discriminated against in the workplace?

  • The employee requires employees to return to work only if 100% healed, i.e. with no restrictions.
  • The worker is treated differently because of the disability
  • A company policy inadvertently harms the disabled individual, whether intentional or not
  • A disabled individual is harassed, bullied, made fun of, or even threatened because of a disability or in reaction to a perceived disability
  • The disabled employee is denied a job or specific role in the company, even if the disability has no bearing on the actual scope of the work performed
  • The employee is denied a reasonable accommodation that was requested
  • The employee is denied a promotion or raise because of a disability.

 

Is Alcoholism a Disability?

Both the Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) prohibit employment discrimination based upon a person’s disability or known disability. Alcoholism is a protected disability under federal and California law.  Although alcoholism can be a protected disability requiring consideration of a potential accommodation, under both the ADA and FEHA an employer can discipline and even discharge an employee whose use of alcohol adversely affects job performance or conduct.  An employer may still refuse to hire or discharge an employee who, because of the employee’s current use of alcohol, is unable to perform his or her duties or cannot perform those duties without endangering their own health and safety or the health and safety of others. This means that if an employee is currently abusing alcohol and it impairs their ability to do their job, or it jeopardizes their safety or the safety of their colleagues, the employer may validly fire the employee.  If an employee requests leave to participate in a rehabilitation program, the employer should provide it or risk liability for failing to accommodate the employee’s disability. Labor Code Section 1025 states that every private employer regularly employing 25 or more employees shall reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program so long as it does not impose an undue hardship on the employer.

 

Reasonable Accommodation

Reasonable accommodation in the workplace is any appropriate measure that would allow the applicant or employee with a disability to perform the essential functions of the job. It can include making facilities accessible to individuals with disabilities or restructuring jobs, modifying work schedules, buying or modifying equipment, modifying examinations and policies, or other accommodations. Qualified individuals with disabilities may ask their employer to make reasonable accommodations, as long as the accommodations do not create an “undue hardship,” that is, cause harm the employer, are prohibitively expensive or require extreme levels of work to complete.

Examples of reasonable accommodations include actions such as:

  • Job Restructuring: Job restructuring includes modifications such as reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and altering when and/or how a function, essential or marginal, is performed
  • Modified or Part Time Work Schedule: A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees
  • Modified Work Place Policies: Example: An employer has a policy prohibiting employees from eating or drinking at their workstations. An employee with insulin-dependent diabetes requests permission to keep such food at her workstation and to eat or drink when her insulin level necessitates. The employer must modify its policy to grant this request, absent undue hardship. An employer’s refusal to modify a workplace policy, such as a leave or attendance policy, could constitute disparate treatment as well as a failure to provide a reasonable accommodation. For example, an employer may have a policy requiring employees to notify supervisors before 9:00 a.m. if they are unable to report to work. If an employer would excuse an employee from complying with this policy because of emergency hospitalization due to a car accident, then the employer must do the same thing when the emergency hospitalization is due to a disability.
  • Job transfer or reassignment to vacant position: This type of reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship. An employee must be “qualified” for the new position. An employee is “qualified” for a position if s/he: (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation. The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.
  • Finite leave of absence:  An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position.

 

If you feel you’ve been discriminated against during the hiring process or as an employee of a company, you may want to seek protection under the ADA or California’s Fair Employment and Housing Act. Asking for reasonable accommodations is the first step, but it is advisable to contact a disability discrimination lawyer if you have already asked for accommodations and you’re not seeing adequate progress toward creating a safe and supportive work environment that respects your unique disability. If you feel you have suffered from disability discrimination in the workplace, contact an employment attorney at Feldman Browne Olivares, APC today.