An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

The school cannot deny an accommodation as unreasonable unless it can support that decision with analytical reasons why each proposed accommodation: would be unreasonable; would not allow the employee to perform essential job functions; would pose a significant risk to the health and safety of the employee or others, including students; or would pose an undue hardship on the school. If the analytical exercise reveals that the school cannot make any reasonable accommodations, then the school must usually decide whether to separate the employee because of its inability to accommodate him or her. Regardless of whether the employee is employed for a term, is employed for cause, or is an at-will employee, the school should set forth the reasons for its inability to accommodate in a letter that comprehensively describes: the history of employer’s efforts to interact and accommodate; the reasoning that supports the decision to deny each proposed accommodation; and, the potential accommodations that the employer considered. E. C OLLECTIVE B ARGAINING A ND T HE FEHA/ADA Schools that have unionized employees should be aware that the FEHA/ADA generally override inconsistent terms contained in collective bargaining agreements. Schools must pay particular attention to the FEHA, which provides broader protections to employees than the ADA. Schools should review their collective bargaining agreements to determine whether the provisions of the agreements violate either the FEHA or the ADA. Provisions that would likely impact employment decisions regarding disabled employees include: transfer/assignment, promotion, training, discipline, sick leave, and light duty provisions. Potential liability exists for both employers and labor organizations for violations of the FEHA/ADA. Labor organizations therefore have an incentive to work with the schools to modify or eliminate illegal provisions. A school negotiating a collective bargaining agreement should attempt to modify objectionable terms and include language that allows for additional modifications as the law develops. Schools may achieve the latter in either of two ways.  A school may include a “provision permitting the employer to take all actions necessary to comply with” the ADA and/or the FEHA. 1566

 To the extent a labor organization is unwilling to include such a provision, the school should include a provision allowing it to reopen negotiations on the agreement with regard to any provision that the school reasonably believes violates the ADA and/or the FEHA, or any of the regulations or judicial decisions interpreting those statutes.

The courts have addressed the impact of collective bargaining agreements on the duty to reasonably accommodate. For example, the United States Supreme Court decided that negotiated seniority systems usually “trump” the duty to accommodate, but an employee might be able to show “special circumstances” in which a seniority system should be set aside. 1567 In addition, the California Court of Appeal ruled that an employee cannot be compelled to arbitrate a statutory discrimination claim, notwithstanding the existence of an arbitration clause in that employee’s collective bargaining agreement. The court stated that unions cannot

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