An Employer’s Duty to Provide a Reasonable Accommodation

icon-scalesUnder the Fair Employment and Housing Act (FEHA), an employee must generally provide an employer notice of the need for a reasonable accommodation for his or her disability.  Achal v. Gate Gourmet, Inc., N.D. Cal. 2015, 114 F.Supp.3d 781.  There is no one set way to request an accommodation, but an employer is not required to provide a reasonable accommodation until it is aware of the employee or applicant’s disability and physical limitations. Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237.  An employer is not expected to read the mind of an employee to determine that an accommodation is needed.  Id.  However, if an employer recognizes that an applicant or employee may require an accommodation, the employer then has the initial responsibility of providing a reasonable accommodation.  Achal, supra, 114 F.Supp.3d 781.    That duty is not extinguished after one effort to accommodate a disabled employee.  Id.  Employers need to be aware that under the FEHA, it can be liable for a single failure to provide reasonable accommodations despite providing ongoing successful accommodations.  A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 465.

Once an employee or applicant requests a reasonable accommodation, he or she must cooperate with the employer’s efforts to provide an accommodation by explaining the disability and qualifications.   Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 598; Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th, 721, 738-740.  While the FEHA and California Code of Regulations provide examples of reasonable accommodations, the notion of reasonable accommodations is to be interpreted flexibly.  Sargent v. Litton Systems, Inc. (N.D. Cal. 1994) 841 F.Supp. 956, 961.  As long as the employee is disabled and qualified to perform the essential job duties, the employer has an obligation to explore alternative ways of accommodation before it terminates the employee.  Alejandro v. ST Micro Electronics, Inc. (N.D. Cal. 2015) 129 F.Supp.3d 898, 912; see Sargent, supra, 841 F.Supp. at p. 961 (Employers must contemplate how to remove barriers that impede the progress of its disabled employees and actively restructure their way of doing business in order to accommodate the needs of disabled employees).

By contrast, if an employee is able to control his or her disability, the employer is not required to provide a reasonable accommodation.  Alamillo v. BNSF Ry. Co. (9th Cir. 2017) 869 F.3d 916, 922.  In Amarillo, the Plaintiff suffered from sleep apnea and had attendance violations in the workplace.  Id. at 921.  The Ninth Circuit in that case concluded that Amarillo’s sleep apnea “may have been a contributing factor to his attendance violations, but only due to his own non-[disability]-related carelessness and inattention.”  Id. at 922; see also McClure v. National Railroad Passenger Corporation (C.D. Cal., June 10, 2021, No. CV197699MWFJPRX) 2021 WL 4395812, at *8.

Generally, an employer also does not have the duty to investigate whether or not an employee’s illness might qualify as a disability.  Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.  Rather, this burden lies with the employee if the employer has no knowledge of the disability.  Avila, supra, 165 Cal.App.4th at 1252-1253.

If you feel that your employer has not provided you with a reasonable accommodation, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or