Most employees with disabilities know that their employer has a legal obligation to try to accommodate them at work. But when does that process of accommodation begin or end? And what exactly are an employee's rights within the disability accommodation process?
A recent federal district court opinion provides helpful insight into these questions. The courts answer: the process of disability accommodation is ongoing, and the employee has a right to the employer's attention to their requests for accommodation, in some cases even without a doctor's note.
Worker Sues for Disability Discrimination Due to Accommodation Failure in New Role
In the federal court case, an employee named Jan Thomsen who worked for a corrugated container plant, injured his shoulder at work in 2012. When he returned to work, he had a note from his physician that recommended a 30-pound limit to the worker's lifting responsibilities. The employer, Georgia-Pacific Corrugated, initially moved him from his previous role as a cut-and-die operator to a new role as an assistant end gluer. Mr. Thomsen then complained to his employer that the new role still required him to lift more than 30 pounds, and that his required overtime caused him pain in his shoulder. Georgia-Pacific Corrugated then requested that Mr. Thomsen produce a new note from his doctor outlining restrictions against his new role. After Mr. Thomsen failed to produce such a note and refused to work overtime, Georgia-Pacific fired him. Thomsen sued Georgia-Pacific for several violations of the California Fair Employment and Housing Act, including a failure on Georgia-Pacific's part to engage in the interactive process of accommodation that employment law requires.
California FEHA Provides Additional Protections for Workers with Disabilities
The Federal Americans with Disabilities Act ("ADA") and the California Fair Employment and Housing Act (FEHA) both require employers to make reasonable accommodations for employees with disabilities. California law goes further to protect employees, as well. Section 12940 of the California Government Code requires employers to "engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations." Courts have held that the employee must usually initiate this interactive process, unless the need for accommodation is obvious to the employer. The FEHA also holds that the required process is not limited to "ritualized discussions," but should involve an open and informal conversation which neither party should obstruct. If there is a breakdown in communications, the responsibility for the breakdown lies with the party who failed to participate in good faith.
Georgia-Pacific Didn't Listen to Thomsen's New Disability Accommodation Requests
In the Georgia-Pacific case, the employer initially met with Thomsen to discuss positions that he could fill that met his lifting restrictions. When Georgia-Pacific offered him the end gluer position, Thomsen initially said he could do the job and accepted it. After starting the end gluer position, Thomsen told Georgia-Pacific's HR department that the position wasn't fulfilling his lift requirements, and that the long hours were causing him shoulder pain.
The HR agent Thomsen spoke with told him that he needed a new doctor's note. He also told his supervisor that his arm hurt. But instead of having a good-faith, open conversation with him, the supervisor yelled at him and told Thomsen that he had already been cleared to work. Another Georgia-Pacific employee informed HR of Thomsen's complaints, but HR failed to follow up.
Employees Have Right to Ongoing Disability Accommodation
The court determined that a jury might reasonably find that Georgia-Pacific was in violation of the FEHA's requirement that employers engage in an interactive process to determine reasonable accommodations. This should remind employees that they have a right to more than just a single meeting. Employers have a duty to listen to employee needs for disability accommodation, not only when that need first arises, but at any time in the future. Employees have a right to be heard with openness, not just receive a reprimand for their concerns. Job activities and employee needs change over time, and employees have a right under the FEHA to have an open channel of communication about how employers can accommodate those changes.
Are you being subjected to disability discrimination at work? If you feel your California employer has violated your employee rights under the FEHA, contact an expert employment lawyer right away.