Terminating the Employment Relationship

T ERMINATION FOR A D ISABILITY THAT C ANNOT BE A CCOMMODATED

Section 4

Under certain circumstances, an employer can terminate the employment relationship with an employee because of the employee’s disability. In order to get to the point of separating an employee due to a disability, an employer must first satisfy its obligation to engage in the interactive process and consider reasonable accommodations. This portion of the workbook focuses on the procedure for separating a disabled employee and briefly touches upon an employer’s interactive process and reasonable acc ommodation obligations when it learns that an employee has a disability. The interactive process is the subject of an entire Liebert Cassidy Whitmore workbook, “Disability Interactive Process , ” which we urge you to consult if you are unsure regarding an e mployer’s interactive process obligations. In the event an employer cannot accommodate an employee’s disability, either because the employee cannot perform the essential functions of the position even with an accommodation or one of the defenses discussed below applies, the employer may initiate separation. Beware that there are several overlapping laws that apply. Therefore, an employer should not separate an employee because of a disability unless and until the employer has considered the overlapping laws and consulted with legal counsel. For example, as discussed below, an employer may be required to apply for a disability retirement for the employee. A. I NTERACTIVE P ROCESS AND R EASONABLE A CCOMMODATION California’s Fair Employment and Housing Act (“FEHA”) and the federal Americans with Disabilities Act (“ADA”) both require employers to engage in an interactive process with a disabled employee whose disability interferes with the employee’s ability to perform the essential functions of the job. The purpose of the interactive process is to bring the employer and employee together to discuss the employee’s limitations and potential reasonable accommodations (i.e., modifications to the work environment) that may be available to enable the employee to continue working. 82 1. I NTERACTIVE P ROCESS Under FEHA, employers are required to engage in a “timely, good faith, interactive process” with the employee or applicant in response to requests for reasonable accommodation. 83 Similarly, under the ADA, an employer can be liable for failing to engage in the interactive process in good faith if a reasonable accommodation was possible. 84 The interactive process requires participation by both parties and typically must begin when an employee requests an accommodation. However, an employer may have an obligation to initiate an interactive dialogue with an employee even when the employee has not requested an accommodation. If an employer knows (i.e., “actual knowledge”) or should know of (i.e. “constructive knowledge”) an employee’s disability, the actual or constructive knowledge of the

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