On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
When is a Request for Accommodation Unreasonable?
Most employers are aware that employees with a recognized or perceived disability are legally entitled to a “reasonable accommodation,” if it would enable them to perform the essential functions of their job. Unknown to many employers, however, is the fact that the duty to “reasonably accommodate” an employee’s disability is not without limits.
For example, depending on the nature of an employee’s disability, job duties and medical restrictions, an accommodation that would enable him/her to perform the essential functions of the job may simply be impossible to fashion.
Even in situations where an accommodation is conceivable, the employer is legally required to provide only those accommodations that are “reasonable.” By way of illustration, an employer is not required to substitute another supervisor that an employee feels is more compatible. This is true even in situations where an employee’s doctor requests such an “accommodation” as a means of reducing anxiety or depression resulting from a poor working relationship with a manager. Such an accommodation would likely not be deemed “reasonable.”
As a result, the mere fact that an employee’s physician has requested a particular accommodation does not, by itself, obligate the employer to comply. Under California law, an employee’s poor working relationship with his/her supervisor, even if it results in physical manifestations such as elevated anxiety, is not recognized as a protected disability under California law. This is true even if it contradicts recommendations issued by the employee’s physician.
Accordingly, an employee who presents a doctor’s note requesting an accommodation must first establish, as a threshold matter, that he/she has an underlying disability that qualifies for legal protection under California law. Not every source of discomfort in the workplace is a protected disability requiring employer accommodations. Thus, building on the above example, an employee who experiences anxiety is not entitled to “reasonable accommodation,” unless the condition rises to the level of a legally recognized mental or physical disability, and his/her health care provider recommends work restrictions that can be reasonably accommodated.
The bottom line is that employers are under no obligation to submit to every accommodation requested by employees.
The Good Faith Interactive Process
Generally speaking, employees with a legally-recognized disability are protected against discrimination, retaliation and harassment by California law. In addition, California’s Fair Employment and Housing Act (“FEHA”) requires that employers engage in a good faith interactive process with disabled employees as a means of determining what, if any, reasonable accommodations would enable the employee to perform the essential functions of his/her job.
Employers are legally bound to commence the interactive process for the purpose of identifying possible accommodations whenever 1) an employee requests reasonable accommodation, 2) the employer is aware of the need for accommodation or 3) an employee has exhausted a leave, but still requires additional accommodation.
The duty to initiate the interactive process applies whenever an employee has an actual disability, or is perceived as having one. This affirmative legal duty is imposed on employers whenever any supervisory employee becomes aware of these facts, regardless of whether the employee has specifically requested an accommodation or the interactive process.
Further, the employee is not required to reveal the nature of his/her disability to the employer. Employers are legally prohibited from asking questions to elicit information about a disability, but can ask whether the applicant or employee can perform the essential functions of the job.
If the applicant or employee requests an accommodation, or if the employer believes the employee may require one, it may make a limited inquiry regarding a possible accommodation.
If the disability or need for accommodation is not readily apparent, the employer may require medical documentation to confirm the existence of the disability and need for reasonable accommodation.
Jay G. Putnam is a labor lawyer who has specialized in representing Northern California employers for four decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in four decades with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.