Reasonable Accommodation of Disabilities Requirements In California

Under the Fair Employment and Housing Act (FEHA) it is an unlawful employment practice for an employer "to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee" ( Gov. Code, 12940, subd. (k)), and for an employer, "because of the . . . physical disability, mental disability, medical condition . . . of any person, . . . to discharge the person from employment . . . or discriminate against the person in compensation or in terms, conditions, or privileges of employment." (Gov. Code, 12940, subd. (a).) "Employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an 'undue hardship.' ( Cal. Code Regs., tit. 2, 7293.9; Sargent v. Litton Systems, Inc. (N.D.Cal 1994) 841 F. Supp. 956, 960.) 'Reasonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as: (1) Accessibility. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; (2) Job restructuring. Job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions.' (Cal. Code Regs., tit. 2, 7293.9, subd. (a).)" (Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App. 4th 935, 947 [62 Cal. Rptr. 2d 142].) "Numerous courts have assumed that the reassignment obligation means something more than treating a disabled employee like any other job applicant." (Aka v. Washington Hosp. Center (D.C. Cir. 1998) 156 F.3d 1284, 1304 [332 App. D.C. 256].) The responsibility to reassign a disabled employee who cannot be otherwise accommodated does "not require creating a new job, moving another employee, promoting the disabled employee, or violating another employee's rights under a collective bargaining agreement" ( Cassidy v. Detroit Edison Co. (6th Cir. 1998) 138 F.3d 629, 634) but it nevertheless does entail affirmative action. Courts have made it clear that "an employer has a duty to reassign a disabled employee if an already funded, vacant position at the same level exists." ( Mengine v. Runyon (3d Cir. 1997) 114 F.3d 415, 419.) As stated in Gile v. United Airlines, Inc. (7th Cir. 1996) 95 F.3d 492, 498, "the ADA may require an employer to reassign a disabled employee to a different position as reasonable accommodation where the employee can no longer perform the essential functions of their [sic] current position." (Id. at p. 148, italics added; see also Benson v. Northwest Airlines, Inc., supra, 62 F.3d 1108, 1114.)