{"id":161,"date":"2023-12-06T02:45:32","date_gmt":"2023-12-06T02:45:32","guid":{"rendered":"https:\/\/wrongful-termination-ca.com\/?page_id=161"},"modified":"2023-12-07T00:44:11","modified_gmt":"2023-12-07T00:44:11","slug":"reasonable-accommodations-for-disability","status":"publish","type":"page","link":"https:\/\/wrongful-termination-ca.com\/index.php\/reasonable-accommodations-for-disability\/","title":{"rendered":"Reasonable Accommodations for Disability"},"content":{"rendered":"\n
Reasonable Accommodations for Disability<\/p>\n\n\n\n
Reasonable Accommodation for Disability to Avoid Discrimination in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law<\/p>\n\n\n\n
Introduction: <\/p>\n\n\n\n
In California, as in the rest of the United States, laws such as the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) require employers to provide reasonable accommodations to employees with disabilities. The purpose of these accommodations is to ensure that employees with disabilities have equal opportunities in the workplace. Failure to provide reasonable accommodation can lead to discrimination claims, including wrongful termination. <\/p>\n\n\n\n
I. Legal Framework: <\/p>\n\n\n\n
A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits disability discrimination and requires employers with five or more employees to provide reasonable accommodations to qualified individuals with disabilities. This includes accommodations for the application process, the job itself, and other employment-related activities.<\/p>\n\n\n\n
B. Americans with Disabilities Act (ADA): The ADA is a federal law that applies to employers with 15 or more employees. It also mandates reasonable accommodations for qualified individuals with disabilities. In many cases, ADA requirements closely align with those of the FEHA.<\/p>\n\n\n\n
C. Reasonable Accommodation: Reasonable accommodation refers to modifications or adjustments that allow employees with disabilities to perform their job duties effectively. Accommodations can include changes to work hours, job duties, workspace, or providing assistive technology.<\/p>\n\n\n\n
II. Legal Consequences: <\/p>\n\n\n\n
A. Wrongful Termination Claims: An employee who believes they were wrongfully terminated due to a failure to provide reasonable accommodation can bring a legal claim against their employer. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.<\/p>\n\n\n\n
B. Government Enforcement: Regulatory agencies like the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) can investigate claims of failure to provide reasonable accommodations and take legal action against non-compliant employers.<\/p>\n\n\n\n
III. Potential Problems: <\/p>\n\n\n\n
A. Failure to Engage in the Interactive Process: One common problem is when employers fail to engage in the “interactive process” with the employee to identify appropriate accommodations. Employers must communicate with the employee to determine what accommodations are needed and feasible.<\/p>\n\n\n\n
B. Undue Hardship: Employers can deny accommodation requests if they can prove that providing the accommodation would impose an “undue hardship” on the business. This determination can be complex and must be made on a case-by-case basis.<\/p>\n\n\n\n
C. Inconsistent Application: Employers must consistently apply their accommodation policies and not treat employees with disabilities differently. Inconsistencies can be used as evidence of discriminatory intent.<\/p>\n\n\n\n
IV. Examples:<\/p>\n\n\n\n
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Failure to Engage in the Interactive Process Example: An employee with a visual impairment requests a screen reader software as an accommodation to perform their job tasks. Instead of engaging in a discussion to determine the feasibility and specifics of the request, the employer immediately terminates the employee. In this case, the employer’s failure to engage in the interactive process may lead to a strong wrongful termination claim.<\/li>\n\n\n\n
Undue Hardship Example: An employer with a small business denies an employee’s request for a full-time telecommuting accommodation due to their mobility impairment. The employer can demonstrate that allowing full-time telecommuting would create an undue hardship because the employee’s job requires daily in-person meetings. In this scenario, the employer may be justified in denying the accommodation.<\/li>\n<\/ol>\n\n\n\n
<\/p>\n\n\n\n
Conclusion<\/p>\n\n\n\n
In conclusion, providing reasonable accommodation for disabilities is a legal obligation for employers in California. Failure to do so can result in significant legal consequences, including wrongful termination claims and government enforcement actions. To avoid these risks, employers should be proactive in engaging in the interactive process, consider each accommodation request individually, and ensure consistent application of their accommodation policies while being mindful of their obligations under the FEHA and ADA.<\/p>\n\n\n\n
Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen. <\/p>\n\n\n\n
<\/p>\n\n\n\n
2541. Disability Discrimination\u2014Reasonable Accommodation\u2014Essential Factual Elements (Gov. Code,\u00a7 12940(m))<\/strong><\/p>\n\n\n\n
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[<\/strong>Name of plaintiff<\/em>] claims that [<\/strong>name of defendant<\/em>] failed to reasonably accommodate [his\/her\/<\/strong>nonbinary pronoun<\/em>] [<\/strong>select term to describe basis of limitations, e.g., physical condition<\/em>]. To establish this claim, [<\/strong>name of plaintiff<\/em>] must prove all of the following:<\/strong><\/strong><\/p>\n\n\n\n\n
<\/strong>That [<\/strong>name of defendant<\/em>] was [an employer\/[<\/strong>other covered entity<\/em>]];<\/strong><\/strong><\/li>\n\n\n\n
<\/strong>That [<\/strong>name of plaintiff<\/em>] [was an employee of [<\/strong>name of defendant<\/em>]\/ applied to [<\/strong>name of defendant<\/em>] for a job\/[<\/strong>describe other covered relationship to defendant<\/em>]];<\/strong><\/strong><\/li>\n\n\n\n
<\/strong>That [[<\/strong>name of plaintiff<\/em>] had\/[<\/strong>name of defendant<\/em>] treated [<\/strong>name of plaintiff<\/em>] as if [he\/she\/<\/strong>nonbinary pronoun<\/em>] had] [a] [<\/strong>e.g., physical condition<\/em>] [that limited [<\/strong>insert major life activity<\/em>]];<\/strong><\/strong><\/li>\n<\/ol>\n\n\n\n
[4. That [<\/strong>name of defendant<\/em>] knew of [<\/strong>name of plaintiff<\/em>]\u2019s [<\/strong>e.g., physical condition<\/em>] [that limited [<\/strong>insert major life activity<\/em>]];]<\/strong><\/strong><\/p>\n\n\n\n
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<\/strong>That [<\/strong>name of plaintiff<\/em>] was able to perform the essential duties of [[his\/her\/<\/strong>nonbinary pronoun<\/em>] current position or a vacant alternative position to which [he\/she\/<\/strong>nonbinary pronoun<\/em>] could have been reassigned\/the position for which [he\/she\/<\/strong>nonbinary pronoun<\/em>] applied] with reasonable accommodation for [his\/her\/ <\/strong>nonbinary pronoun<\/em>] [<\/strong>e.g., physical condition<\/em>];<\/strong><\/strong><\/li>\n\n\n\n
<\/strong>That [<\/strong>name of defendant<\/em>] failed to provide reasonable accommodation for [<\/strong>name of plaintiff<\/em>]\u2019s [<\/strong>e.g., physical condition<\/em>];<\/strong><\/strong><\/li>\n\n\n\n
<\/strong>That [<\/strong>name of plaintiff<\/em>] was harmed; and<\/strong><\/strong><\/li>\n\n\n\n
<\/strong>That [<\/strong>name of defendant<\/em>]\u2019s failure to provide reasonable accommodation was a substantial factor in causing [<\/strong>name of plaintiff<\/em>]\u2019s harm.<\/strong><\/strong><\/li>\n<\/ul>\n\n\n\n
[In determining whether [<\/strong>name of plaintiff<\/em>]\u2019s [<\/strong>e.g., physical condition<\/em>] limits [<\/strong>insert major life activity<\/em>], you must consider the [<\/strong>e.g., physical condition<\/em>] [in its unmedicated state\/without assistive devices\/[<\/strong>describe mitigating measures<\/em>]].]<\/strong><\/strong><\/p>\n\n\n\n
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New September 2003; Revised April 2007, December 2007, April 2009, December<\/em><\/p>\n\n\n\n
2009, June 2010, December 2011, June 2012, June 2013, May 2019<\/em><\/p>\n\n\n\n
Directions for Use<\/strong><\/strong><\/p>\n\n\n\n
Select a term to use throughout to describe the source of the plaintiff\u2019s limitations. It<\/p>\n\n\n\n
<\/p>\n\n\n\n
may be a statutory term such as \u201cphysical disability,\u201d \u201cmental disability,\u201d or \u201cmedical condition.\u201d (See Gov. Code, \u00a7 12940(a).) Or it may be a general term such as \u201ccondition,\u201d \u201cdisease,\u201d or \u201cdisorder.\u201d Or it may be a specific health condition such as \u201cdiabetes.\u201d<\/p>\n\n\n\n
For element 1, the court may need to instruct the jury on the statutory definition of \u201cemployer\u201d under the FEHA. Other covered entities under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, \u00a7 12940(a)\u2013(d).)<\/p>\n\n\n\n
This instruction is for use by both an employee and a job applicant. Select the appropriate options in elements 2 and 5 depending on the plaintiff\u2019s status.<\/p>\n\n\n\n
If medical-condition discrimination as defined by statute (see Gov. Code, \u00a7 12926(i)) is alleged, omit \u201cthat limited [insert major life activity<\/em>]\u201d in elements 3 and 4 and do not include the last paragraph. (Compare Gov. Code, \u00a7 12926(i) with Gov. Code,<\/p>\n\n\n\n
\u00a7 12926(j), (m) [no requirement that medical condition limit major life activity].)<\/p>\n\n\n\n
In a case of perceived disability, include \u201c[name of defendant<\/em>] treated [name of plaintiff<\/em>] as if [he\/she\/nonbinary pronoun<\/em>] had\u201d in element 3, and delete optional element 4. (See Gov. Code, \u00a7 12926(j)(4), (m)(4) [mental and physical disability include being regarded or treated as disabled by the employer].) In a case of actual disability, include \u201c[<\/strong>name of plaintiff<\/em>] had\u201d in element 3, and give element 4.<\/p>\n\n\n\n
If the existence of a qualifying disability is disputed, additional instructions defining \u201cphysical disability,\u201d \u201cmental disability,\u201d and \u201cmedical condition\u201d may be required. (See Gov. Code, \u00a7 12926(i), (j), (m).)<\/p>\n\n\n\n
The California Supreme Court has held that under Government Code section 12940(a), the plaintiff is required to prove that the plaintiff has the ability to perform the essential duties of the job with or without reasonable accommodation. (See Green v. State of California <\/em>(2007) 42 Cal.4th 254, 260 [64 Cal.Rptr.3d 390, 165 P.3d 118].) While the court left open the question of whether the same rule should apply to cases under Government Code section 12940(m) (see id. <\/em>at p. 265), appellate courts have subsequently placed the burden on the employee to prove that the employee would be able to perform the job duties with reasonable accommodation (see element 5). (See Cuiellette v. City of Los Angeles <\/em>(2011) 194 Cal.App.4th 757, 766 [123 Cal.Rptr.3d 562]; Nadaf-Rahrov v. The Neiman Marcus<\/em><\/p>\n\n\n\n
Group, Inc. <\/em>(2008) 166 Cal.App.4th 952, 973\u2013979 [83 Cal.Rptr.3d 190].)<\/p>\n\n\n\n
There may still be an unresolved issue if the employee claims that the employer failed to provide the employee with other suitable job positions that the employee might be able to perform with reasonable accommodation. The rule has been that the employer has an affirmative duty to make known to the employee other suitable job opportunities and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees. (Prilliman v. United Air Lines, Inc. <\/em>(1997) 53 Cal.App.4th 935, 950\u2013951<\/p>\n\n\n\n
[62 Cal.Rptr.2d 142]; see also Furtado v. State Personnel Bd. <\/em>(2013) 212<\/p>\n\n\n\n
Cal.App.4th 729, 745 [151 Cal.Rptr.3d 292]; Claudio v. Regents of the University of<\/em><\/p>\n\n\n\n
California <\/em>(2005) 134 Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837]; Hanson v. Lucky<\/em><\/p>\n\n\n\n
Stores <\/em>(1999) 74 Cal.App.4th 215, 226 [87 Cal.Rptr.2d 487].) In contrast, other courts have said that it is the employee\u2019s burden to prove that a reasonable accommodation could have been made, i.e., that the employee was qualified for a position in light of the potential accommodation. (See Nadaf-Rahrov, supra<\/em>, 166 Cal.App.4th at p. 978; see also Cuiellette, supra<\/em>, 194 Cal.App.4th at p. 767 [plaintiff proves the plaintiff is a qualified individual by establishing that the plaintiff can perform the essential functions of the position to which reassignment is sought].) The question of whether the employee has to present evidence of other suitable job descriptions and prove that a vacancy existed for a position that the employee could do with reasonable accommodation may not be fully resolved.<\/p>\n\n\n\n
No element has been included that requires the plaintiff to specifically request reasonable accommodation. Unlike Government Code section 12940(n) on the interactive process (see CACI No. 2546, Disability Discrimination\u2014Reasonable Accommodation\u2014Failure to Engage in Interactive Process<\/em>), section 12940(m) does not specifically require that the employee request reasonable accommodation; it requires only that the employer know of the disability. (See Prilliman, supra<\/em>, 53 Cal.App.4th at pp. 950\u2013951.)<\/p>\n\n\n\n
Sources and Authority<\/strong><\/strong><\/p>\n\n\n\n
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Reasonable Accommodation Required. Government Code section 12940(m).<\/li>\n\n\n\n
\u201cReasonable Accommodation\u201d Explained. Government Code section 12926(p).<\/li>\n\n\n\n
\u201cMedical Condition\u201d Defined. Government Code section 12926(i).<\/li>\n\n\n\n
\u201cMental Disability\u201d Defined. Government Code section 12926(j).<\/li>\n\n\n\n
\u201cPhysical Disability\u201d Defined. Government Code section 12926(m).<\/li>\n\n\n\n
\u201cSubstantial\u201d Limitation Not Required. Government Code section 12926.1(c).<\/li>\n\n\n\n
\u201cThere are three elements to a failure to accommodate action: \u2018(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff\u2019s disability. [Citation.]\u2019 \u201d (Hernandez v. Rancho Santiago Cmty. College Dist. <\/em>(2018) 22 Cal.App.5th 1187, 1193\u20131194 [232 Cal.Rptr.3d 349].)<\/li>\n\n\n\n
\u201cUnder the FEHA, \u2018reasonable accommodation\u2019 means \u2018a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.\u2019 \u201d (Cuiellette, supra<\/em>, 194 Cal.App.4th at p. 766.)<\/li>\n\n\n\n
\u201cReasonable accommodations include \u2018[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position<\/em>, . . . and other similar accommodations for individuals with disabilities.\u2019 \u201d (Swanson v. Morongo Unified School Dist. <\/em>(2014) 232 Cal.App.4th 954, 969 [181 Cal.Rptr.3d 553], original italics.)<\/li>\n<\/ul>\n\n\n\n
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\u201cThe examples of reasonable accommodations in the relevant statutes and regulations include reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether. FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.\u201d (Nealy v. City of Santa Monica <\/em>(2015) 234 Cal.App.4th 359, 375 [184<\/li>\n<\/ul>\n\n\n\n
Cal.Rptr.3d 9].)<\/p>\n\n\n\n
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\u201cA term of leave from work can be a reasonable accommodation under FEHA, and, therefore, a request for leave can be considered to be a request for accommodation under FEHA.\u201d (Moore v. Regents of University of California <\/em>(2016) 248 Cal.App.4th 216, 243 [206 Cal.Rptr.3d 841], internal citation omitted.)
\u201cFailure to accommodate claims are not subject to the McDonnell Douglas <\/em>burden-shifting framework.\u201d (Cornell v. Berkeley Tennis Club <\/em>(2017) 18 Cal.App.5th 908, 926 [227 Cal.Rptr.3d 286].)<\/li><\/ul>
\u201cThe question now arises whether it is the employees\u2019 burden to prove that a reasonable accommodation could have been made, i.e., that they were qualified for a position in light of the potential accommodation, or the employers\u2019 burden to prove that no reasonable accommodation was available, i.e., that the employees were not qualified for any position because no reasonable accommodation was available. [\u00b6\u00b6] Applying Green\u2019s <\/em>burden of proof analysis to section 12940(m), we conclude that the burden of proving ability to perform the essential functions of a job with accommodation should be placed on the plaintiff under this statute as well. First, . . . an employee\u2019s ability to perform the essential functions of a job is a prerequisite to liability under section 12940(m). Second, the Legislature modeled section 12940(m) on the federal reasonable accommodation requirement (adopting almost verbatim the federal statutory definition of \u2018reasonable accommodation\u2019 by way of example). Had the Legislature intended the employer to bear the burden of proving ability to perform the essential functions of the job, contrary to the federal allocation of the burden of proof, . . . it could have expressly provided for that result, but it did not. Finally, general evidentiary principles support allocating the burden of proof on this issue to the plaintiff.\u201d (Nadaf-Rahrov, supra<\/em>, 166 Cal.App.4th at pp. 977\u2013978, internal citations omitted.)<\/li><\/ul>\n
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\u201c \u2018If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available. [Citation.] A reassignment, however, is not required if \u201cthere is no vacant position for which the employee is qualified.\u201d [Citations.] \u201cThe responsibility to reassign a disabled employee who cannot otherwise be accommodated does \u2018not require creating a new job, moving another employee, promoting the disabled employee or violating another employee\u2019s rights \u201d \u2019 [Citations.] \u201cWhat is required is the<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
\u2018duty to reassign a disabled employee if an already funded, vacant position at the<\/p>\n\n\n\n
<\/p>\n\n\n\n
same level exists.\u2019 [Citations.]\u201d [Citations.]\u2019 \u201d (Furtado, supra<\/em>, 212 Cal.App.4th at p. 745.)<\/p>\n\n\n\n
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\u201c[A]n employee\u2019s probationary status does not, in and of itself, deprive an employee of the protections of FEHA, including a reasonable reassignment. The statute does not distinguish between the types of reasonable accommodations an employer may have to provide to employees on probation or in training and those an employer may have to provide to other employees. We decline to read into FEHA a limitation on an employee\u2019s eligibility for reassignment based on an employee\u2019s training or probationary status. Instead, the trier of fact should consider whether an employee is on probation or in training in determining whether a particular reassignment is comparable in pay and status to the employee\u2019s original position.\u201d (Atkins v. City of Los Angeles <\/em>(2017) 8 Cal.App.5th 696, 724 [214 Cal.Rptr.3d 113], internal citations omitted.)<\/li>\n\n\n\n
\u201c[A] disabled employee seeking reassignment to a vacant position \u2018is entitled to preferential consideration.\u2019 \u201d (Swanson, supra<\/em>, 232 Cal.App.4th at p. 970.)<\/li>\n\n\n\n
\u201c \u2018Generally, \u201c \u2018[t]he employee bears the burden of giving the employer notice of the disability.\u2019 \u201d \u2019 An employer, in other words, has no affirmative duty to investigate whether an employee\u2019s illness might qualify as a disability. \u2018 \u201c \u2018[T]he employee can\u2019t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.\u2019 \u201d \u2019 \u201d (Featherstone v. Southern California Permanente Medical Group <\/em>(2017) 10 Cal.App.5th 1150, 1167 [217 Cal.Rptr.3d 258], internal citations omitted.)<\/li>\n\n\n\n
\u201c \u2018[A]n employer \u201cknows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by<\/li>\n<\/ul>\n\n\n\n
observation.\u201d \u2019 . . . [\u00b6] \u2018While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only <\/em>reasonable interpretation of the known facts. \u201cVague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].\u201d \u2019 \u201d (Featherstone, supra, <\/em>10 Cal.App.5th at p. 1167, internal citations omitted.)<\/p>\n\n\n\n
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\u201cIn other words, so long as the employer is aware of the employee\u2019s condition, there is no requirement that the employer be aware that the condition is considered a disability under the FEHA. By the same token, it is insufficient to tell the employer merely that one is disabled or requires an accommodation.\u201d (Cornell<\/em>, supra<\/em>, 18 Cal.App.5th at p. 938, internal citation omitted.)<\/li>\n\n\n\n
\u201c \u2018 \u201c \u2018This notice then triggers the employer\u2019s burden to take \u201cpositive steps\u201d to accommodate the employee\u2019s limitations. . . . [\u00b6] . . . The employee, of course, retains a duty to cooperate with the employer\u2019s efforts by explaining [his or her] disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and<\/li>\n\n\n\n
<\/li>\n<\/ul>\n\n\n\n
shares information to achieve the best match between the [employee\u2019s] capabilities and available positions.\u2019 \u201d \u2019 \u201d (Soria v. Univision Radio Los Angeles, Inc. <\/em>(2016) 5 Cal.App.5th 570, 598 [210 Cal.Rptr.3d 59].)<\/p>\n\n\n\n
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\u201cEmployers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an \u2018undue hardship.\u2019 \u201d (Prilliman<\/em>, supra<\/em>, 53 Cal.App.4th at p. 947.)
\u201c \u2018Ordinarily, the reasonableness of an accommodation is an issue for the jury.\u2019 \u201d (Prilliman<\/em>, supra<\/em>, 53 Cal.App.4th at p. 954, internal citation omitted.)<\/li><\/ul>
\u201c[T]he duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA.\u201d (Bagatti, supra<\/em>, 97 Cal.App.4th at p. 362.)<\/li><\/ul>\n
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\u201c[A]n employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would impose an \u2018undue hardship\u2019 on its operations………………………………………………………………………….. \u201d (Atkins,<\/em><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
supra, <\/em>8 Cal.App.5th at p. 721.)<\/p>\n\n\n\n
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\u201cThe question whether plaintiffs could perform the essential functions of a position to which they sought reassignment is relevant to a claim for failure to accommodate under section 12940, subdivision (m) \u201d (Atkins, supra<\/em>, 8<\/li>\n<\/ul>\n\n\n\n
Cal.App.5th at p. 717.)<\/p>\n\n\n\n
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\u201cOn these issues, which are novel to California and on which the federal courts are divided, we conclude that employers must reasonably accommodate individuals falling within any of FEHA\u2019s statutorily defined \u2018disabilities,\u2019 including those \u2018regarded as\u2019 disabled, and must engage in an informal, interactive process to determine any effective accommodations.\u201d (Gelfo v. Lockheed Martin Corp. <\/em>(2006) 140 Cal.App.4th 34, 55 [43 Cal.Rptr.3d 874].)
\u201cWhile a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.\u201d (Moore, supra<\/em>, 248 Cal.App.4th at p. 242.)<\/li><\/ul>
\u201c[A] pretextual termination of a perceived-as-disabled employee\u2019s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.\u201d (Moore, supra<\/em>, 248 Cal.App.4th at p. 244.)<\/li><\/ul>\n
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\u201cAppellant also stated a viable claim under section 12940, subdivision (m), which mandates that an employer provide reasonable accommodations for the known physical disability of an employee. She alleged that she was unable to work during her pregnancy, that she was denied reasonable accommodations for her pregnancy-related disability and terminated, and that the requested accommodations would not have imposed an undue hardship on [defendant]. A finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA.\u201d (Sanchez v. Swissport, Inc. <\/em>(2013) 213 Cal.App.4th 1331, 1341 [153 Cal.Rptr.3d 367].)<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
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\u201cTo the extent [plaintiff] claims the [defendant] had a duty to await a vacant position to arise, he is incorrect. A finite leave of absence may be a reasonable accommodation to allow an employee time to recover, but FEHA does not require the employer to provide an indefinite leave of absence to await possible future vacancies.\u201d (Nealy, supra<\/em>, 234 Cal.App.4th at pp. 377\u2013378.)<\/li>\n\n\n\n
\u201cWhile \u2018a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform . . . her duties\u2019, a finite leave is not a reasonable accommodation when the leave leads directly to termination of employment because the employee\u2019s performance could not be evaluated while she was on the leave.\u201d (Hernandez, supra, <\/em>22 Cal.App.5th at p. 1194.)<\/li>\n<\/ul>\n\n\n\n
Secondary Sources<\/h1>\n\n\n\n
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, \u00a7 977<\/p>\n\n\n\n
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA)<\/em>, \u00b6\u00b6 9:2250\u20139:2285, 9:2345\u20139:2347 (The Rutter Group)<\/p>\n\n\n\n