Failure to Accommodate
One of the pillars of providing assistance to disabled employees is the requirement of an employer to provide a “reasonable accommodation” for employees and applicants with disabilities.
Reasonable accommodations might include:
- Restructuring the employee’s job, including a change to part-time or modified work schedules
- An extended medical leave of absence
- Reassignment to a vacant position
- Modifying equipment, materials or even changing personnel policies
- Providing qualified readers or interpreters
- Temporarily converting a position to light-duty, or
- Making existing facilities readily accessible to individuals with disabilities
Undue Hardship Defense
Employers may assert that the employee’s request for a reasonable accommodation would create an “undue hardship.” Since undue hardship is a defense, the burden is on the employer to show that the accommodation would be significantly difficult or expensive to implement. The undue hardship defense does not mean merely inconvenient or burdensome for the employer.
The FEHA’s interpretative regulations state that the accommodation must be a “significant” difficulty or expense when considering several factors: (1) the cost of the accommodation, (2) the financial resources, number of employees, and the effect of the accommodation on the employer, (3) the type of operations of the employer, and (4) the relationship between the employer’s facilities.