San Francisco Employment Law Firm Blog
Both ADA (Americans with Disabilities act) and its California counterpart – FEHA (Fair Employment and Housing Act) cover disabled employees as well as employees whom the employer has regarded or treated as having had any physical or mental disability or medical condition that makes achievement of a major life activity difficult.
California Government Code section 12940(m) requires covered employers to make reasonable accommodations for the known physical or mental disability of an employee, unless undue hardship on the employer’s business would result. Under section 12940(f)(2) states that an employer may require any examinations of inquiries so long as they are job related and consistent with business necessity to determine its employees’ health condition for the purpose of compliance with disability laws.
The FEHA’s requirement of reasonable accommodations is triggered when the employer becomes aware of an employee’s disability, which may occur because it is an obvious disability, the employee has disclosed the condition,or the employer has obtained a medical opinion through a fitness for duty examination. The three primary results of a medical examination are: (1) the employee is qualified to perform the job without the need for any accommodation and poses no safety risk; (2) the employee will be able to perform his job with a reasonable accommodation; or (3) the employee is not qualified to perform the job due to his condition or due to a safety risk, and there are no reasonable accommodations that would enable for that worker to perform the essential duties of his job.
If the employee is qualified and requires no accommodations, the employer must return the employee to the job. If the employee requires a reasonable accommodation upon returning to work, the employer must explore if and how this can be done through an interactive process. Accommodations can include a wider variety of job or work station modification.
If it has been determined that the employee is not fit to return to work, the employer must consider whether the employee is temporarily unable to perform the essential functions of the job, and if so, whether a leave of absence is required or appropriate under the provisions of FMLA (Family Medical Leave Act) or CFRA (California Family Rights Act). Other California leave laws may also come into play.
If the employee cannot perform the essential functions of the job with or without accommodation, the employer may be able to lawfully terminate that employee’s employment or refusing reinstatement.