At the Law Offices of Jeremy Pasternak, we often talk with workers who struggled to work with disabilities for too long before asking for help. We can understand why. From a very young age, most people are taught to work hard, push through pain and “pull themselves up by their bootstraps” when the going gets tough. If you are working with a disability, here are seven facts you should know about your right to accommodation.
1. Most Workers Have the Right to Reasonable Accommodation for Disability
Federal laws and California state laws protect workers in many ways. For example, the California Fair Employment and Housing Act says that employers must provide “reasonable accommodation” for people with physical or mental disabilities. That way, those workers can apply for jobs and perform essential functions of their jobs.
Is every California employer required to do this? No. The law only applies to employers that have five or more employees. It also allows employers to avoid providing the accommodation if it would cause an undue hardship.
2. Reasonable Accommodation Takes Many, Many Forms
So, what is a “reasonable accommodation”? Reasonable accommodation takes many forms. One of the most common accommodations is simply time off from work. Reasonable accommodation can also mean things like:
- Restructuring job duties: For example, changing the work schedule for someone with a cognitive impairment so that the job is more consistent from day to day.
- Changing the work schedule: For example, letting a person come in early so that you can leave early for regular therapy appointments, or so that they can work while they are feeling their best.
- Moving or changing the work area: For example, moving furniture to create a clear, safe pathway for an employee who is blind.
- Reassigning to another job: For example, letting a person with chronic back pain change to another vacant position that has different job responsibilities that are less painful.
- Providing mechanical or electrical aids: For example, making sure a work computer has the proper hardware and software, including voice recognition programs, screen readers or screen enlargement applications.
This isn’t a complete list. Your employer should work with you to accommodate your needs, depending on your situation. If you have questions about what accommodations might be reasonable, talk with a lawyer.
3. A Disability Can Be Something That Only Happens Sometimes
When many people think of disability in the workplace, they think of something that’s there all the time – like blindness, deafness or paralysis that requires the use of a wheelchair. The truth is that most disabilities accommodated by employers aren’t like that. They’re usually something that affects the employee during certain activities or at certain times.
Back pain is the most common reason for workplace accommodation. Employers make accommodations for things like psychiatric or mental impairments, including anxiety and PTSD. They also make them for impairments like epilepsy or migraines, as well as carpal tunnel syndrome, heart defects and recovery from substance abuse.
4. Studies Have Shown That Workers Who Speak Up Are More Likely to Get an Accommodation
Legal researchers have studied disability in the workplace extensively. Surprisingly, they didn’t find that one type of disability was the most likely to be accommodated or that one industry was more likely to accommodate its workers than others.
Instead, researchers found that workers are more likely to get reasonable accommodations when the employee was assertive and there was open communication between the worker and the employee. What does that mean for you? It might be best to tell your employer about your disability sooner rather than later. That way, you can get a reasonable accommodation before your disability interferes with your job performance – or worse – before you have to stop working altogether.
5. If You Speak Up and Your Employer Takes Action Against You, the Law Protects You
You might be worried that talking with your employer about your disability and asking for a reasonable accommodation could backfire. After all, employers have been known to terminate employees for speaking up.
You should know that the law protects you from retaliation. Federal and state laws keep employers from taking negative actions against employees because of a disability – or even a perceived disability. So, if you are fired for asking for a reasonable accommodation, you may be able to file a wrongful termination lawsuit.
6. Employers Get the Law Wrong All the Time
Here’s something else that you should know: Employers are notorious for getting the law wrong. Many human resources professionals do not have adequate training in disability law. So, they mistakenly tell employees that they aren’t entitled to time off or other accommodations when they really are.
Just because your company’s human resources manager has told you that you are not entitled to a reasonable accommodation does not mean that is true. Get a second opinion from someone who is on your side and who has in-depth knowledge of California disability law.
7. If Your Employer Denies a Reasonable Accommodation, You Have Options
If you request a reasonable accommodation from your employer and don’t get it, there are several courses of action you can take. Talk with your supervisor, your supervisor’s supervisor, or someone in your corporate HR department who can take action on your behalf. You can also talk with an employment attorney. Your lawyer can help you take action, like filing a formal complaint against your employer with an administrative agency. If that doesn’t work, you may also be able to file a lawsuit in court.
Need Help Getting Started?
You can always contact our law firm at (415) 693-0300 (San Francisco) or 213-797-5823 (Los Angeles). At the Law Offices of Jeremy Pasternak, we have been solving employment law problems for 20 years, and we only represent employees.