An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

“prospectively waive an employee’s right to a judicial forum to hear his or her statutory discrimination claims.” 1568 However, another California Court of Appeal recognized that an arbitration clause might be enforceable if it contained a “clear and unmistakable” waiver of an employee’s right to litigate his/her FEHA claim and if there were procedural protections in place. 1569 F. W ORKERS ’ C OMPENSATION C LAIMS A ND T HE FEHA/ADA I NTERACTIVE P ROCESS An employee’s workers’ compensation claim may trigger the employer’s duty to engage in the interactive process to identify a reasonable accommodation under the ADA and/or the FEHA. An employee’s request or an employer’s knowledge of the employee’s disability and the need or desire for accommodation imposes this duty. Processing the injured employee’s workers’ compensation claim apprises the employer of the injury and any consequent functional limitations. The school may be put on notice of the employee’s desire for accommodation through the workers’ compensation claims process. If the employee’s injury qualifies as a disability, the school must initiate the interactive process of attempting to identify a reasonable accommodation. G. D EFENSES O F B USINESS N ECESSITY A ND U NDUE H ARDSHIP 1. D IRECT T HREAT T O H EALTH A ND S AFETY – ADA/FEHA A school is not obligated to hire, continue to employ, or accommodate a qualified individual with a disability who poses a direct threat to the health and safety of himself or herself or other individuals in the workplace. A “direct threat” is a significant risk to the health and safety of a qualified individual with a disability or others that the school cannot eliminate with reasonable accommodation. 1570 In Wills v. Superior Court (2011) 195 Cal.App.4th 143, the court held that an employer may discipline an employee for disability-caused misconduct if the misconduct consists of threats or violence against co-workers. LCW Practice Advisor The general rule is that an employer may not discipline

an employee for misconduct that is caused by a disability. The Wills v. Superior Court case creates a very narrow exception for misconduct that, although caused by a disability, consists of threats or violence. In this limited context, a school may discipline an employee for the conduct in order to ensure a safe work environment for employees and students.

Also, a school may, for example, refuse to hire an individual with a disability such as narcolepsy (one who frequently and unexpectedly loses consciousness) for a position in which the essential functions include working with dangerous equipment. 1571 If, however, an individual poses a

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