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Disability Rights -- "Reasonable" is Written Right into the Law

February 6, 2014

 The laws protecting disabled employees in the workplace aren't that complicated, and they're not onerous. In fact, the law uses the word "reasonable" over and over again to describe the protections afforded disabled workers.

California and federal law are very different in this area. Although California's Fair Employment & Housing Act ("FEHA") was modeled after the federal Americans with Disabilities Act ("ADA"), the FEHA has developed much differently through the years. So throughout this post, I'll be talking about the FEHA. Just be aware that the ADA may be substantially different.

First of all, what does it mean to have a disability? The FEHA defines a disability as any physical or mental impairment that limits a major life activity. (This is the first big difference between FEHA and ADA. The ADA requires that the impairment "substantially limit" a major life activity. An amendment to the FEHA removed the word "substantially," and now requires only a limitation.) Major life activities include walking, talking, breathing, digesting, and a host of others.

Much like race, age, sex, religion, and other protected characteristics, an employer can't discriminate against an employee because of a disability. That *doesn't* mean the employer can't fire someone with a disability; it means the employer can't fire someone *because* of a disability. If a disabled worker is doing poor work, he can be fired just like anyone else.

The law gets more involved when it comes to accommodating an employee with a disability. Any employee qualified to do the job must be provided a reasonable accommodation if it can be done without undue hardship to the employer.

That's just one sentence, but there's a lot to it. Starting at the beginning, a "qualified employee" is one who can perform the primary functions of the job with or without a reasonable accommodation. "Primary functions" don't include remote or trivial functions. For example, the primary functions of an outside salesperson might include driving to meet with customers, or entering sales information in a spreadsheet. For an outside salesperson, sweeping the floors or closing the shop at night might not be primary functions. "Primary functions" are determined based on what the employee actually does on a day-to-day basis, not just on what's in the job description.

The law protects employers, as well as employees, by requiring that the employee be able to perform those primary functions. In other words, if a disabled employee can't perform the primary functions of the job, the employer is free to fire that employee.

Before doing so, however, the employer must find out if a reasonable accommodation is available that could help the employee perform the job's primary functions. For example, suppose our outside salesperson had arthritis, which impacted the major life activities of grasping and holding objects. Arthritis probably qualifies as a disability (whether it does or not depends on how it affects the particular individual, but let's assume here the effect is enough to qualify as a disability). Suppose also that this salesperson's arthritis prevented entering sales data into a spreadsheet, which we said before was a primary function of his job. Is there a reasonable accommodation that exists that could help that person do the job?

To find out, the employer must engage in what the law calls a "good faith, interactive process" (GFIP) with the employee. That essentially means they must talk with one another, in good faith, to see if there's some accommodation that will allow the disabled employee to do the job. For example, the employee might suggest that the company buy voice recognition software to help with the data entry. Perhaps a larger keyboard with bigger keys will allow the salesperson to type without pain.

It may be possible that an assistant could help the salesperson with data entry. If the employer is very small, it might conclude that hiring an assistant would be an undue hardship. The law looks at each individual case to determine what is reasonable under those particular circumstances. 


The point of the law is to keep people with disabilities working to the extent that they can do the job and remain productive. The law is written to require employers and employees to interact to see what can be done to accomplish that goal. When both sides are reasonable, and engage in good faith, the law works well.

 

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