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Now he tells us he’s disabled! Must we still accommodate with a flexible schedule?

by on
in Employment Law,Human Resources

Q. Our employment application asks applicants if they are capable of satisfactorily performing the essential job duties required of the position for which they are applying. We hired a worker who later told us that he has a medical condition that prevents him from coming to work on time and, on some days, coming to work at all. Are we required to accommodate this individual?

A. The answer to your question depends on whether your employee is considered disabled and qualified under the ADA and under its California counterpart, the Fair Employment and Housing Act (FEHA), in addition to whether attendance is an essential job function of your employee’s position.

Both the ADA and FEHA require a covered employer to provide a reasonable accommodation to qualified applicants and employees with a disability (or a perceived disability), where such an accommodation would enable the individual to perform the essential functions of the job, unless to do so would create an undue hardship. 

The ADA applies to employers with 15 or more employees. The FEHA applies to employers with five or more employees.

The ADA prohibits discrimination against employees who meet the statute’s definition of a “qualified individual with a disability.” The ADA defines a “disability” in three ways:

  1. A physical or mental impairment that substantially limits one or more of the major life activities of an individual
  2. A record of such an impairment
  3. Being regarded as having such an impairment.

An individual is disabled under the FEHA if he or she:

  1. Has a physical or mental disability that limits a major life activity
  2. Has a health impairment that requires special education or related services
  3. Has a record or history of such a disability
  4. Is regarded or treated as having, or having had, such a disability
  5. Is regarded or treated as having, or having had, such a disability that has no present disabling effect, but that may become disabling.

Thus, you must first establish whether your employee’s health issue would be considered a disability under the ADA or the FEHA.

To be considered “qualified” an employee must be able to perform the essential functions of a position with or without reasonable accommodation. Note that what constitutes an essential job function varies a great deal from job to job and employer to employer.

Employers may have to provide a reasonable accommodation to enable an individual with a disability to meet a qualification standard that is job related and consistent with business necessity or to perform the essential functions of his or her position. A reasonable accommodation is any change in the work environment or in the way things are customarily done that enables an applicant or employee with a disability to enjoy equal employment opportunities.

But, an employer never has to provide an accommodation that would cause undue hardship (meaning significant difficulty or expense), which includes removing an essential function of the job.

If you have determined that your employee is a qualified individual with a disability under the ADA or the FEHA, you should nevertheless evaluate the job performance of an employee with a disability the same way that you evaluate any other employee’s performance.

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