An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

under the ADA and the FEHA to accommodate the employee. The FEHA mandates that an employer respond in a timely and good faith manner to an employee’s or applicant’s request for reasonable accommodation. 1482 Again, the employer should follow-up with the appropriate health care professional concerning possible accommodations.  If the employee is not disabled, is he or she nonetheless suffering from a serious health condition? The employer should carefully consider whether the employee is eligible for leave under the Family Medical Leave Act (“FMLA”) and/or the California Family Rights Act (“CFRA”) and whether the employee has requested time off.  If the employee is not disabled and does not have a serious health condition, yet is unable to perform the essential functions of his or her job, the employer may (depending upon the circumstances) choose to address the issue as one involving performance problems and proceed accordingly, including potentially imposing discipline. 1483

C. R EASONABLE A CCOMMODATION O F A N E MPLOYEE

1. R EASONABLE A CCOMMODATION A PPLIES O NLY T O K NOWN D ISABILITIES The duty to reasonably accommodate is imposed only as to “known” physical or mental impairments. 1484 If the school knows or should have known of an employee’s disability, then it has a duty to identify and implement a reasonable accommodation. 1485 In one case, the California Court of Appeal held that the employee sufficiently requested accommodation of leave for surgery when she stated she “would likely” need surgery at some point in the next few months. 1486 In another case, the same court held that an employer with knowledge of an employee’s disability had, as part of its reasonable accommodation obligation, an affirmative duty to inform the employee of alternative positions. 1487 Another court held that the burden is on the employee to request accommodation for a disability. 1488 In that case, an employee was injured in a truck accident and was unable to work for a year because of the injuries. When the employee returned to work, he aggravated his lower back while driving a water truck for the employer. The employee informed the employer that he did not want to drive a water truck again. The employee never advised the employer about his physical condition. For a year and a half, the employee was not called into work and was not told that work was available. The employee sued the employer for disability discrimination. The court held that since the employee did not contact the employer to discuss his physical condition or request to drive something other than a water truck, the employee failed to show that his lack of work was based on the employer’s failure to accommodate his disability. In general, it is the responsibility of the individual with a disability to notify the employer that an accommodation is needed. However, in the absence of this notification, the school must inquire whether the employee with a known disability is in need of a reasonable accommodation if the employee is unable to make such request or if the school otherwise becomes aware of the

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