Handicapped Employee Rights Under the ADA plus California’s FEHA

The particular Americans with Disabilities Act is applicable only to employers with fifteen or even more employees. However California’s Fair Employment and Housing Act also helps prevent discrimination based on a physical disability.
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FEHA applies to employers with five or more employees.

Employers cannot discriminate based on disability. Employers cannot instantly say we cannot accommodate your request for a modification of the work place. With disability law an employer has yes, definitely obligations beyond simply not discriminating. The employer must go through an “interactive process” with an employee who is requesting a lodging due to a covered disability.

California situation law imposes a very broad necessity on employers to search for other empty positions within their entire organizations once they have determined they cannot reasonably support a disabled employee in his or her prior position. For a multi-state employer, this means checking all other functions for a vacant position, or establishing that during the interactive process the particular employee was only willing to re-locate within a limited radius. This Ca rule contrasts with the more lax federal rule requiring generally that the employer only demonstrate that it “engaged in a good faith effort to distinguish a position. ” The primary obligation pertains to California FEHA’S Duty to Engage in an Interactive Process.

Under California FEHA, an employer has a duty to engage in a “timely, good faith, interactive process” to determine effective reasonable accommodations to get a person with a known disability. More, the employer’s obligation extends to workers who do not have an actual disability, yet are “regarded as” disabled.

In case a person has a disability, California employers must provide a reasonable accommodation, to permit a person to perform the essential functions of their job, as long as it does not cause an undue hardship to the employer. Just before an employer addresses these rules, they must start by engaging in an interactive dialog with the employee to see if they have the covered disability.

A covered disability is defined as a physical or psychological disability that limits one or more main life activities on a long term basis. The disability “makes the achievement of the major life activity difficult. ” Further, if a person does not have a disability currently, but they have a prior history of having a disability, and a company discriminates on the basis of this perception, the law protects the person. Anyone who is taken care of or “regarded as” having an impairment is covered.

Example: A job applicant who had cancer 10 years back, is now cancer free, but is told they are not being hired since the employer is worried they will get cancer again. This person is covered under the Americans with Disabilities Act or ADA. This is an example of a “regarded as” claim.

Example: An employer thinks their employee is definitely bi-polar, because some days they work effectively and other days they just can not get anything done. Whether this particular person is or is not bi-polar doesn’t matter under disability elegance law. An employer who associates job performance within the context of a disability makes that person a qualified person using a disability.

Example: An employee continually requires unscheduled absences and when they are at your workplace they seem tired and spacey. Their work quality is not great. The employee has not mentioned this, but employer is concerned employee has a medical condition that is impacting job overall performance. What does the employer do? First open a dialog and talk to the particular employee about their work functionality. Do not start by asking if they have the medical condition. Technically, if the employer believes the employee is not able to perform the fundamental functions of their job, they may take part in a medical inquiry. However , here that may be premature. The starting point would be to open up a dialogue to determine what’s going on with the worker. Why are they having problems? What can the employer do to help all of them? This discussion may lead to the employee disclosing a medical condition. From there company needs to engage in an interactive dialog and determine if there is a reasonable lodging that allows the employee to perform the primary functions of their job.


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