FEHA imposes comprehensive reasonable accommodation obligations on employers that are broader than federal requirements, creating an affirmative duty to accommodate disabled workers in multiple circumstances. Under Government Code Section 12940(m), employers must make reasonable accommodation for the known disabilities of applicants and employees to enable them to perform a position’s essential functions, unless doing so would produce undue hardship to the employer’s operations.
Affirmative Duty and Scope: FEHA creates an affirmative duty for employers to accommodate disabled workers, meaning employers have a proactive obligation rather than merely a reactive one. Significantly, employers who are aware of an employee’s disability have an affirmative duty to make reasonable accommodations even if the employee has not requested any accommodation. This duty arises when the employer knows or should know of the disability, placing the burden on employers to be attentive to accommodation needs.
A supervisor is considered the employer’s agent for purposes of this duty, meaning if a supervisor has acquired knowledge about a disability that they had a duty to communicate to the employer, a conclusive presumption arises that the supervisor has done so. This ensures that knowledge at any management level triggers the accommodation obligation.
Types of Reasonable Accommodations: FEHA and its regulations provide an extensive, non-exhaustive list of possible accommodations that demonstrates the law’s comprehensive approach. These include making facilities readily accessible to and usable by disabled individuals, such as providing accessible break rooms, restrooms, training rooms, or reserved parking places, and acquiring or modifying furniture, equipment, or devices.
Job-related accommodations encompass job restructuring, offering part-time or modified work schedules, reassigning to a vacant position, adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters, and altering when and/or how an essential function is performed. The law also recognizes accommodations such as modifying supervisory methods, providing additional training, permitting an employee to work from home, and allowing assistive animals on the worksite.
Leave as Accommodation: FEHA specifically includes providing paid or unpaid leave for treatment and recovery as a reasonable accommodation. Notably, unlike other forms of statutory leave, FEHA does not have a fixed limit on the amount of leave required as a reasonable accommodation. Rather, “a disabled employee is entitled to a reasonable accommodation—which may include leave of no statutorily fixed duration—provided that such accommodation does not impose an undue hardship on the employer.”
However, the law clarifies that “when an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.” Additionally, reasonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.
Reassignment Rights: When an employee can no longer perform their current job’s essential functions, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job. The employer has a duty to ascertain and offer suitable jobs rather than simply telling the disabled employee to check available job postings. FEHA entitles the disabled employee to “preferential consideration” in reassignment of existing employees.
However, the employer is not required to promote or create a new position to accommodate a disabled employee, unless the employer has a policy or practice of creating new positions for injured employees.
Coverage of “Regarded As” Disabled: Under FEHA, an employer must reasonably accommodate an applicant or employee whom it regards as disabled, even if the applicant or employee is not actually disabled. This broad interpretation ensures that accommodation rights extend beyond those with actual disabilities to include those who face discrimination based on perceived disabilities.
Limitations: FEHA does not require employers to accommodate the use of illegal drugs, including medical marijuana, despite its legal status under California law for medical purposes. However, as of January 1, 2024, Government Code Section 12954 prohibits employers from discriminating against a person because of cannabis use while off the job, with specific exceptions for safety-sensitive positions and federal requirements.
The duty to accommodate is also limited where the employee can control the disability, as “reasonable accommodation does not include excusing a failure to control a controllable disability or giving an employee a ‘second chance’ to control the disability in the future.”