Employers must provide reasonable accommodation to disabled employees. That’s the law. And the law is neither convenient nor efficient. But employers do not need to provide any requested reasonable accommodation. As a general matter, employers can choose between equally effective accommodations. Moreover, employers may make the determination that no reasonable accommodation is possible. For example, in Milan, the Plaintiff suffered a workplace injury on September 10, 2002. Then, on March 30, 2004, she “received a letter from the city terminating her employment. The letter stated that based on [her doctor’s] evaluation, the city had concluded that Milan could not return to her customary position and there was no job within the city which she could reasonably perform.”
Plaintiff sued alleging the failure to make reasonable accommodation. At trial, the City contended that it met its obligations under the FEHA because “Milan had never sought an accommodation of her disability, and that in any event no accommodation was possible because she could not perform the essential functions of her job.” On appeal, the Court accepted the City’s argument:
Section 12940 [of the FEHA], subdivision (n), does not permit an employee to ignore notice his or her employer believes he or she is not fit to work, be absent from work for more than 18 months, and make no attempt to communicate with the employer about his or her desire to continue working. Milan’s apparent response to the workers’ compensation administrator or workers’ compensation appeals board was not adequate because in the end Milan accepted rehabilitation and retraining benefits offered by the administrator. In this context, good faith required that Milan directly express to the city her interest in retaining her job. Only then would an obligation to engage with her with respect to possible accommodations arise.
The lesson here is simple: both parties must put the “active” in the “interactive process.” And, if an employee unreasonably refuses to communicate, the employer may, under the right circumstances, take unilateral action.