California Labor Law Undue Hardship

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Melanie regularly represents and advises cities, counties, public safety departments and special districts on employee and labour relations matters. The breadth of her experience as a negotiator and as a litigator shapes her hands-on approach to the myriad of labour and employment issues. California`s Federal Americans with Disabilities Act (ADA) and Fair Employment and Housing Act (FEHA) protect employees with disabilities from discrimination, harassment, and retaliation. Laws require employers to give due consideration to the known disabilities of their employees so that they can perform the essential functions of their work. The provisions are necessary unless their implementation imposes unreasonable hardship on the employer. Employees who work with a person with a disability are also protected. [1] The arrangements are reasonable when adjustments are made to allow employees with disabilities to perform the essential functions of their work,22 unless the employer can demonstrate that accommodating them constitutes an unreasonable difficulty for business activities.23 Practical advice: If you reject an accommodation request because it represents an unreasonable difficulty, don`t refrain from: document why. Provide financial and other relevant factual information to support the decision. Proving that an accommodation caused unreasonable hardship is a heavy burden alleviated by highlights. If there are no unreasonable hardships and the employer does not take reasonable precautions, you can file an ADA complaint under the Americans with Disabilities Act. Once a legally protected disability is identified, an employer is required to provide reasonable accommodation, unless the accommodation constitutes undue hardship.14 Employers are required to make reasonable accommodations for your disability, unless it means “unreasonable harm.” Keywords:California Labor Law, Disability Accommodations, California Employer Accommodations, Undue Hardship Most employers are aware of the legal duty to adequately accommodate employees with known disabilities, unless the accommodation causes unreasonable hardship to the business. Adapting to disability has become a little more difficult during the pandemic, as workers are on leave, teleworking, working out of time or performing their work tasks elsewhere or in a different way than before the health crisis. If the accommodation results in unreasonable hardship for the employer, the employer is not required to do so.

Unreasonable difficulties can pose logistical or financial challenges; If the applicant`s or employee`s request would cause unreasonable harm, this is an inappropriate measure. The above obligation applies unless the employer experiences unreasonable hardship if it takes reasonable precautions. “Undue hardship” means that compliance with the obligation would result in the company having a significant impact: Cal. Code Regs., tit. 2, § 11068 , subd. (a) [“An employer or other covered entity has a positive obligation to provide reasonable accommodation for the disability of an applicant or employee where the employer or other covered entity has knowledge of the disability, unless the employer or other covered entity can demonstrate, after participating in the interactive process, that the placement would constitute unreasonable harm.”] ↥ The loss of some or all of the employer`s income due to the pandemic is, of course, a relevant consideration. Normally, the cost of a particular dwelling is not significant enough to be considered an unreasonable difficulty, but the EEOC recognizes that this could be the case in the current context. Employers should be wary of refusing requests for accommodation on cost grounds and should consider the particular financial circumstances of the businesses, how long the employee may need the accommodation, and whether they can temporarily provide another accommodation until the formal orders are lifted and the business returns to a more normal volume. California Government Code § 12926, subd. (u) [“Undue hardship” means an act requiring significant hardship or cost.”] ↥ This duty applies unless the accommodation imposes “unreasonable harm” on the employer.2 As noted above, the question of whether the accommodation is adequate and whether it represents unreasonable hardship for the employer is factually appropriate. Therefore, an individualized analysis is necessary, taking into account factors such as the employee`s disability, the cost of accommodation and the employer`s ability to pay for it.

This type of analysis can be done in-house, but is much better suited for experienced employment consultants. “Undue hardship” means that the business would have significant difficulties or costs if it took the appropriate precautions.12 If this is the case, the company may refuse your request for reasonable accommodation. Failure to take reasonable precautions can be considered discrimination – but the key word is reasonable. It is not discriminatory for an employer to refuse to take unreasonable precautions (e.g., installing an elevator in a rented building). If an employer cannot take precautions without unreasonable difficulty, this is generally not considered discriminatory. Sometimes undue hardship comes down to money and, in other cases, logistics (e.g., if an employer has the money to install an elevator, but not because they do not own the building). If the placement constitutes an unreasonable constraint on the operation of the employer`s business, the employer may lawfully refuse to comply with an employee`s request for reasonable accommodation. Typically, when employers participate in the interactive process, they learn that the employee with a disability has certain restrictions. In the past, some employers have chosen to categorically refuse to offer light tasks to their employees, which excludes any possibility for the employee to return to the labour market until most, if not all, of the restrictions are lifted.

According to feha, employers are required to consider restrictions unless the accommodation is unreasonable. Of course, assessing what constitutes unreasonable harm to any employer requires an individual analysis that includes a review of the financial and other costs, including business interruption and other employees, required to provide accommodation. Keep in mind that there is no obligation under FEHA or ADA to create a new position, including a temporary position, or to eliminate essential functions from a position. However, FEHA and ADA provide that reasonable arrangements may include the reassignment of an employee to a vacancy for which the employee is qualified. For example, some employers offer light work and let a welder go back to work and simply sweep the warehouse – creating a new position they didn`t have before. Often, employers create these new positions to comply with feha/ADA and encourage employees to improve and re-enter the workforce. However, the creation of a new position or the elimination of essential functions may allow an employee to later claim that the employer can offer the modified or alternative work permanently. It is very difficult to prove that the employee`s long-term accommodation would constitute unreasonable harm, although short-term accommodation does not constitute undue hardship. An employer is subject to undue hardship if the accommodation involves significant difficulties or costs.24 The courts will use the following factors to determine if there is undue hardship: You are not required to make adequate accommodations to an eligible person with a disability if you can prove that the accommodation would cause undue hardship.

The term “undue hardship” includes any precaution that is excessively costly, extensive, important to you, or that would fundamentally change the way your business operates.1 It is well known that employers are not required to provide reasonable accommodation to an employee if doing so would result in unreasonable hardship for the business. The EEOC guidelines state that the pandemic could cause such difficulties to the employer if accommodation measures without a health crisis did not constitute unreasonable difficulties. For example, it may be more difficult to perform a needs analysis or procure certain items, and delivery can be problematic, especially for remote workers. In addition, it may be more difficult to assign temporary assignments to employees, remove marginal characteristics from the job, or hire temporary employees. If accommodation is an unreasonable difficulty, both the employer and employee must continue to seek appropriate options to overcome the problems.