An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

If a school considers this alternative, it should reassign the individual to an equivalent position in terms of pay, status, etc., provided the individual is qualified and the position is vacant within a reasonable amount of time. Reassignment to a lower graded position is, however, permissible if there are no accommodations that would enable the employee to maintain his or her current position and there are no equivalent vacant positions for which the employee is qualified with or without reasonable accommodation. 1519 Under the FEHA, the fact the new position may in actuality be a demotion is acceptable if it is commensurate with the employee’s current abilities and it is the most appropriate existing position available. 1520 The employee with a disability is entitled to preferential consideration of assignment to a vacant position over other applicants and existing employees, unless to do so would violate a bona fide seniority system. 1521 Note that the school is not required to create a position. If no vacant position exists and there is no other way to reasonably accommodate a disabled individual, that individual will not be otherwise qualified for a position and may be dismissed or denied a position. Additionally, an employer need not reassign an employee to another job if the employee fails to prove that the reassignment to another job would reasonably accommodate his or her disability. 1522 Note, however, that the Ninth Circuit has ruled that once a new position that would accommodate the employee is created, the employer has the duty to determine whether the employee is qualified for it. 1523 Once a suitable position becomes permanent, it must be offered to the employee. 1524 viii. Acquisition Or Modification Of Equipment And Devices Purchase of equipment or modifications to existing equipment may be effective accommodations for individuals with many types of disabilities. Many devices exist that make it possible for individuals to overcome existing barriers to performing functions of a job. Many of these assistive devices and modifications are inexpensive. Sometimes, applicants and employees can suggest effective low cost devices or equipment. Disabled individuals have experience in what works in accommodating their disabilities, and many are informed about new and available equipment. 1525 ix. Modifying Examination, Labor Agreements Or Policies Reasonable accommodation may require modifying the school’s examination process, training, or policies. For example, a school may have a rule that receptionists at the front desk may not drink beverages. The school may provide the receptionist with two 15-minute breaks during an eight- hour shift, in addition to a meal break. An individual with a psychiatric disability may, however, need to drink beverages approximately once an hour in order to combat dry mouth, a side effect of psychiatric medication. Such an individual may request a reasonable accommodation. In this example, the school should consider either modifying its policy against drinking beverages at the front desk or modifying its meal and rest break policy, barring undue hardship.

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