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Weigh special assignment as accommodation

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in Discrimination and Harassment,Human Resources

Generally, employers have the right to choose which accommo­­dation they want to offer a disabled employee. That is, the employer—not the employee—gets to choose.

But that right has limits. If em­­ployers want to insist on their own accommodation, they must be prepared to show that it is indeed a “reasonable” one. Otherwise, you risk being liable for failure to accommodate.

Recent case: Lauralyn worked as a reading specialist and computer laboratory teacher. She was diagnosed with breast cancer and missed most of the school year.

The following year, she was offered a fifth-grade teaching assignment. Lauralyn objected, claiming that her health might prevent her from spending the time required to prepare for a new position. She requested assignment to a second-grade class, since she had recently taught second grade at a different school.

Instead, the district placed her in a kindergarten class—an assignment Lauralyn didn’t want to take because she feared her cancer-weakened immune system would be susceptible to illness spread by frequently sick young children.

Shortly after the start of the school year, Lauralyn went on medical leave and was hospitalized for eight days due to complications of her breast cancer, which she attributed to the kindergarten teaching assignment. She wasn’t rehired after missing most of the school year.

She sued, alleging failure to accommodate under FEHA.

The court said that unless the district could show that the kindergarten assignment was a reasonable accommodation, it faced liability for failure to accommodate and failure to engage in the interactive process. (Swanson v. Morongo Uni­­fied School District, No. G050290, California Court of Appeal, 2014)

Bottom line: If you wish to choose your preferred accommodation instead of the employee’s, schedule a meeting to discuss the issue. Then document the discussion in writing.

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