REASONABLE ACCOMMODATION

The University of California is committed to providing reasonable accommodation to qualified individuals with long-term disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. An employer is expected to explore reasonable accommodations for employees with long-term disabilities. It is unlawful to discriminate against an employee due to medical conditions or physical or mental disabilities, either with or without a reasonable accommodation. Persons with physical or mental disabilities are defined as those who have actual or perceived conditions which affect one or more of the body’s systems or limit the person's ability to participate in a major life activity.

I EMPLOYEES WITH “LONG-TERM” PERMANENT DISABILITIES

In particular, the duty of reasonable accommodation requires the University to enter into an interactive process with employees who have medically certifiable long-term conditions or physical or mental disabilities to determine how it might remove barriers that would prevent an otherwise qualified employee from returning to work and performing his/her regularly assigned duties and responsibilities with or without accommodation. Before an employee with a long-term medically certifiable condition or physical or mental disability may be denied reinstatement to his/her job, the University must determine whether or not the employee can perform his/her regularly assigned duties and responsibilities with or without reasonable accommodation. Depending on the nature of the job such reasonable accommodations may include consideration of voice-activated software and/or other special needs equipment, flexible scheduling, working at home, etc.

To do a proper analysis, Employee-Labor Relations and Vocational Rehabilitation Services must have the documentation needed, including the employee's position description, or proposed position description, which identifies essential functions of the job, medical certification submitted by the employee, and all other supporting documentation relevant to the request for accommodation of the employee. Additional documentation may be requested by Employee-Labor Relations and Vocational Rehabilitation Services on an as needed basis.

In coordination and consultation with the affected department and employee, Employee-Labor Relations and Vocational Rehabilitations Services assists the parties in determining whether or not job modifications, some device, or other proposed changes in the job will allow the employee to successfully continue in his/her current job. However, the department need not accept unreasonable suggestions that would cause an undue hardship. For example, assume an employee with very restricted key-boarding abilities (e.g., no more than 25% in an eight (8) hour period) is released to return to work from a disability leave. One of the essential functions of the job is key-boarding (e.g., from seventy-five percent (75%) to eight-five percent (85%) in an eight (8) hour period. The employee suggests that the department hire another employee to do the majority of key-boarding and thus create another job based on his/her medical restrictions. This would in effect excuse the employee from doing that job function. The suggestion is therefore not reasonable, and the department need not adopt it. It is important to note, however, that with increasingly more sophisticated technology, the employee could potentially perform the job with voice-activated software, as another example, depending on the job.

II BUSINESS NECESSITY - THE UNDUE HARDSHIP DEFENSE

Departments unable to return the employee to his/her job due to long-term medical conditions or physical or mental medical restrictions or business necessity must provide a statement of “undue hardship” to Employee-Labor Relations and Vocational Rehabilitation Services as described below.

An employer must provide only an accommodation that is "reasonable." An accommodation is not reasonable if it would impose an "undue hardship" on the operation of the employer’s business. "Undue hardship" means significant difficulty or expense in making, or resulting from, the accommodation. The undue hardship standard takes into account not only the financial difficulty imposed on the employer but also whether the accommodation would be unduly disruptive to its business operations or other employees.

However, as it is often very difficult to prove undue hardship, this option should be used sparingly and only after careful consideration. If it can be shown that an alternative practice existed that would accomplish the business purpose just as well then not returning the employee to work could be unlawful.

Applicable policy and statutory guidelines recognize that some modifications or adjustments are not considered reasonable accommodations. For example, a department does not have to eliminate an essential function of the job if the employee cannot perform the function even with an accommodation, or if the needed accommodation creates an undue hardship. Further, the department does not have to provide personal items a disabled employee may need for daily living both at work and at home (such as wheelchairs) or "personal use amenities" if they are not provided to non-disabled employees (such as refrigerators).

III INITIATING THE ACCOMMODATION PROCESS

The burden is on the employee to request an accommodation. Employers are not expected to be clairvoyant. However, the disabled individual does not have to use any "magic" words or mention ADA or FEHA specifically to request an accommodation. For example, if an employee tells his supervisor he has a back problem without specifically saying he needs an accommodation under ADA or FEHA and at a later date requests a new chair because his current chair is uncomfortable, he has not requested an accommodation under the law. An employee must give the employer enough information to put the employer on notice that he needs an accommodation.

If an employee has not asked for an accommodation, you do not have to inquire whether one is needed. However, you should broach the subject with an employee who is having difficulty performing a job function if you know the employee has a disability and you think the problem is related to the disability.

Also, requests for accommodation do not have to be submitted in writing. We can ask the disabled individual to submit his/her request in writing. However, we cannot ignore oral requests.

IV RESPONDING TO EMPLOYEE ACCOMMODATION REQUESTS

Once a disabled employee has requested an accommodation you should immediately consult Employee-Labor Relations and Vocational Rehabilitation Services to determine the following: (1) whether the accommodation is needed; (2) if needed, whether it would be effective; and (3) if effective, whether providing it would create an undue hardship. Since you only have to accommodate disabled individuals, the first step should be to determine whether the person actually has a disability protected under the ADA or FEHA.

If the disability or need for accommodation is not apparent, ADA and FEHA allows employers to ask questions concerning the nature of the disability and the person’s limitations. In addition, you may require medical documentation from the employee’s health care provider(s) regarding the existence of the disability and the need for accommodation, but the request for documentation must be limited to these two issues. Thus, you cannot ask for all of the individual’s medical records or for information on disabilities that do not need accommodation.

If the individual fails to provide the requested medical documentation, the University may refuse to provide the accommodation. Alternatively, if the individual provides insufficient information to determine whether the person has a disability and needs accommodation, the employer must give the individual an opportunity to provide the missing information. As previously referenced, the employer’s ability to require medical documentation is limited. We cannot ask for documentation if (1) both the disability and need for accommodation are obvious; or (2) the individual has already provided sufficient information to show that he/she has a disability and needs accommodation.

V ACCOMMODATING DISABLED EMPLOYEES - OPTIONS

For disabled employees, accommodations must be made not only to allow them to perform the essential functions of the job but also to allow them to enjoy all "benefits and privileges of employment." These benefits and privileges include any employer-sponsored social events, training programs, communications, lounges, transportation, and other services.

There are different types of possible accommodations related to job performance and focuses on job restructuring, leaves of absence, modified and part-time schedules, modified workplace policies, and reassignment, which are briefly covered below.

Job restructuring. Departments may be required to reallocate or redistribute marginal job functions to other employees if an employee is unable to perform them because of a disability.

Leaves of absence. A leave may be necessary so an employee can seek treatment of a disability, recuperate from a disability-related illness, receive training on an assistive device or with a service animal, or avoid temporary adverse work conditions that could aggravate a disability (such as a radical change in office temperature). Departments are not required to provide paid leave as an accommodation but must allow the use of accrued paid leave or unpaid leave.

Modified and part-time schedules. Departments may have to adjust arrival or departure times, provide periodic breaks, modify when certain functions are performed, or allow part-time work. However, if the modification would significantly disrupt the departmental operations or affect the ability of other employees to perform their jobs, it would be considered an undue hardship.

Modified workplace procedures. Departments may have to revise operational guidelines and procedures to accommodate an employee’s disability-related limitation. For example, a department may have to extend additional time off to an employee who needs chemotherapy or allow a diabetic employee to eat at his desk even though policy prohibits eating at workstations. However, these modifications do not have to be extended to any non-disabled employee.

Reassignment. Reassignment to a position in another department is the "accommodation of last resort" and should be considered only if accommodation in the employee’s present job/department creates a bona fide undue hardship and/or has been determined to be appropriate based on consultation with Employee-Labor Relations and Vocational Rehabilitation Services. In addition, the disabled employee must be qualified (i.e., have the requisite skills, knowledge, and experience) for the new job, although the employer may have to provide additional accommodation so he/she can perform it.

Reassignment should be to a position that is equivalent in pay, status, and benefits. However, if no equivalent position is available, the employee can be reassigned to a vacant, lower-level position and pay the employee at that new job’s normal rate. Please note, however, that the UCOP Benefits Office should be consulted on all such reassignments for coordination with the University of California, Partial Disability: Stay at Work/Return to Work Program, as appropriate. You do not have to promote the employee to a vacant position, although you must allow the employee to compete for promotions. In addition, you do not have to create a new position or transfer another employee to create a vacancy.

VI ISSUES OF HEALTH AND SAFETY

If the condition of an employee released to return to work is such that he/she would pose a direct threat to the health or safety of other employees, the department “may” be justified in not returning the employee to work. For example, the employer must be able to show that, after reasonable accommodation, the employee cannot perform the job's essential functions in a way that would not endanger other individuals (e.g., driving a vehicle). Also, the employer must be prepared to prove that the danger created for others is greater than that which would exist if an individual without a disability did the job.

VII REDUCTION IN FORCE/JOB ELIMINATION

If an employee's job is eliminated during a disability leave, such as due to a layoff or reduction in force that would have otherwise affected the employee had the employee been working, the department should treat the employee as if the employee were working for the purposes of layoffs, reductions in time, bumping rights, position elimination, etc. in accordance with applicable policies, contractual provisions, and/or statutory guidelines, as appropriate.

Notice: Please refer to current University policies, procedures, statutory guidelines, and applicable collective bargaining agreements which shall supersede any and all information contained in this document or elsewhere on this site.