Terminating the Employment Relationship

physical or mental disability, the employer must be certain to comply with federal and state disability laws regarding reasonable accommodation.

Please see Liebert Cassidy Whitmore’s workbooks entitled, “The Disability Interactive Process ” and “Leave Rights for California Employees” for more extensive discussions regarding disabilities and accommodations. a. Standards for a Reasonable Accommodation The ADA, Rehabilitation Act and FEHA have different reasonable accommodation standards. The FEHA standard is in flux at the moment and might extend beyond addressing essential functions. i. ADA Once it is determined that particular functions of the job are essential, it must be determined whether the employee can perform those essential functions with or without accommodation. The employee must first show that accommodation is possible. Once it is determined that the disabled employee or applicant can perform the essential functions of the job if accommodation is made, the burden is then upon the employer to make a reasonable accommodation, or show that the accommodation creates an undue hardship or would impose a significant risk of harm to the health and safety of others. ii. Rehabilitation Act Under the Rehabilitation Act, if the individual cannot perform the essential functions of the job with or without accommodation, the individual is not “otherwise qualified.” (One court held that a discharged employee with strabismus (crossed eyes) was not discriminated against because he could not perform the job of a machine operator. The employee would develop headaches and eye strain when operating the machine and there was no way to reasonably accommodate him. Thus, he was not “otherwise qualified.” ) 91 iii. FEHA Throughout FEHA, the term “reasonable accommodation” arises frequently and is used to indicate different employer responsibilities. Employers are required to make reasonable accommodations to assist individuals with disabilities in performing the essential functions of their jobs. 92 It is unlawful under FEHA for an employer or other covered entity to fail to make a reasonable accommodation for the known physical or mental disability of an applicant or employee. 93 Discussed below are exceptions to this requirement. The requirement of reasonable accommodation asks whether an employer has taken a minimum amount of measures to ensure a disabled individual’s ability to perform their job duties. California courts appear to have inferred an active and affirmative duty on the part of the employer from this requirement. FEHA has been interpreted to require “not only that employers

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