In recent employment cases filed in California, plaintiffs — potential job applicants — have alleged California employers have an obligation to make their job application websites accessible to the visually impaired under California’s Fair Employment and Housing Act (“FEHA”), the state’s version of Title I of the Americans with Disabilities Act (“ADA”). Under this law, employers must take affirmative, proactive measures to ensure those with disabilities have the same access to their goods and services as do sighted job applicants. However, employers do not have an obligation to provide the specific requested accommodation from applicants. Employers must simply provide an effective accommodation.
Steps Employers Can Take
Employers can take several steps to improve their legal compliance when reviewing and responding to requested accommodations from job applicants or employees. First, determine whether your business is covered by FEHA. FEHA does not cover employers who employ four or fewer people and it does not cover certain types of employers, such as religious associations or non-profit organizations. Assuming your business must follow FEHA, employers are also advised to have clear, written policies and procedures for responding to requests for accommodation. For example, an employer should provide the procedure by which an applicant can request an accommodation during the job application process, as well as the employer’s policy for making such an accommodation.
Next, an employer should determine whether the applicant has a qualifying disability. California law’s definition of “disability” is broader than the definition under federal law. Under federal law, the ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. California law defines disability as an impairment that makes performance of a major life activity difficult. Employers may ask the employee or applicant to provide documentation from their treating doctor regarding the nature of impairment, severity, duration, activities limited by the impairment and extent to which impairment limits the employee’s ability to perform the job’s essential duties and functions. Finally, if an applicant or employee is a qualified individual with a qualifying disability, the employer should begin the “interactive process,” which means working with the applicant or employee to determine application-related or job-related limitations and identify possible accommodations.
Once it is clear the applicant or employee has a disability, the employer must provide a reasonable accommodation unless the accommodation would represent an undue hardship to the business operation. To determine a reasonable accommodation, an employer must enter into a good-faith, interactive process to determine if there is a reasonable accommodation that would allow the applicant or employee to obtain or maintain employment.
