reasonable accommodation

One issue that consistently trips up employers is the interplay of laws for an employee with work-related medical issues.  This is sometimes referred to as the Bermuda Triangle of workers’ compensation, ADA/FEHA (disability), and FMLA/CFRA. 

Quite often an employee is injured, a workers’ compensation claim is opened, and the employer somehow forgets the other two prongs of the triangle.  For example, the time off is not designated as FMLA/CFRA, with the rights that go along with it.  Or the duty to engage in the interactive process and reasonably accommodate under the ADA/FEHA is somehow forgotten when the employee returns to work with restrictions.

The reality is that many legal issues start with a workers’ compensation injury, and if those claims are handled proactively, then related civil claims arising from disability can be avoided. 

 Here are some tips for handling those workers’ compensation claims:

  1. First, be proactive when the claim comes in.  Investigate what happened.  Make sure witnesses provide statements with sufficient detail.  Preserve security film and video.  Document the extent of injuries (or the lack thereof).
  2. Second, get all of that information to your workers’ compensation carrier promptly so they can properly evaluate the claim.  If the carrier isn’t responsive, follow-up. 
  3. Third, if you have a light duty program, make sure it is only for a limited time (such as 90 days).  Otherwise you risk creating a new job for someone, and no incentive to get better.
  4. And finally, don’t forget about the interactive process.  If the claim is going to end with a Compromise & Release in the workers’ compensation case, then ask your carrier to negotiate for a resignation.  And if the employee comes back to work and is not fully recovered, make sure any restrictions are documented and accommodated. 

And of course, make sure the employee is not retaliated against for filing the claim. 

Be sure to remember all three sides to any work-related injury so you can avoid getting lost in the Bermuda Triangle!

29612338 – i survived the bermuda triangle grunge rubber stamp on white, vector illustration


Just over a month ago, I had the pleasure of presenting a webinar entitled: “2017 Update: Accommodating Employees With Disabilities.” You can download the slides from my presentation. There were over a hundred attendees (mostly HR professionals) and I wasn’t able to answer everyone’s questions. Since other readers of this blog may have similar questions, let me answer them now.

  • Q: If an employee needs a reasonable accommodation to work reduced hours (under 30 hours/week), are we required to keep them on our company-sponsored group benefit plans since the contract with our benefit providers states employees working a minimum of 30 hours/week are eligible to participate in the company-sponsored group insurance plans?
    A: No. An employee receiving a part-time schedule as a reasonable accommodation is entitled only to those benefits that other part-time employees receive. But if they lose medical coverage because of reduced hours, they may be entitled to continue benefits at group rates at their own expense pursuant to COBRA (for employers with 20 or more employees) or, if you’re in California, Cal COBRA (for two to 19 employees). Your benefits provider can give you details on the notice.
  • Q: Does a doctor’s note have to include a specific diagnosis of a certain condition? What if it is a chiropractor treating neck & shoulder pain. Is that a condition? Do they need to be more specific?
    A: No. If the need for accommodation is not obvious, and the applicant or employee hasn’t already provided “reasonable medical documentation confirming the existence of the disability and the need for accommodation,” the employer can require a doctor’s note addressing those issues. However, employers aren’t entitled to (and have no need to know) the specific diagnosis.
  • Q: What if the doctor says to provide an ergonomic chair and we already do that and the employee just doesn’t like the chair?
    A: Employees aren’t entitled to the accommodation of their choice. If the accommodation you offer (in this case, the chair) is adequate to accommodate the employee, you’ve met your obligations.
  • Q: Do we have to pay for parking that is closer when someone has a broken leg?
    A: This is a developing area of the law. Most courts have held that employers are not required to assist a disabled employee with getting to work. However, some courts have made exceptions, such as when an employee was able to get himself to work without assistance, but the employer transferred the employee to a location that is harder to get to because of a disability. If you’re not paying for other employees’ parking, I don’t see why you would have to pay for this one’s. But again, this is an unsettled area and the answer may depend on what jurisdiction you’re in.

I’ll be speaking on disability law again on December 4, 2017 – this time in a presentation intended for lawyers – at the Bar Association of San Francisco 2017 Disability Law Update. Krista Stone-Manista of Rosen Bien Galvan & Grunfeld LLP will provide the plaintiff’s perspective and I’ll provide the defense perspective on the last year’s developments in this area of law. You can get details, register for the event, or register for the webcast here.

The obligations to reasonably accommodate disabled workers and to engage them in the interactive process make this a unique area of law. If you practice in this area (or hope to), this is a great way to learn about the last year’s developments. See you there!

On September 27, 2017, at noon, I will be presenting a webinar entitled “2017 Update: Accommodating Employees With Disabilities.” The program is intended for human resource professionals and anyone else who fields requests for accommodation for their employer. I will explain what constitutes a disability, the extent of employers’ duties to engage employees in the interactive process to explore possible accommodations, and steps employers can take to meet their legal requirements and minimize their exposure to discrimination claims. The program will be an hour long with an additional 15-minute Q&A session.

Regular readers of this blog have heard me say many times that the disability discrimination laws require more than treating everyone equally. The obligation to reasonably accommodate means that some employees will get advantages that others don’t. Employers are expected to bear the expense and inefficiencies that this entails. Those that don’t understand the extent of that obligation expose themselves to costly litigation and government investigations. On September 27th I will provide concrete, real-world advice gleaned from decades of advising employers and defending disability discrimination claims. Don’t miss it!


So many times an employer gets in trouble for following logic instead of the law.  Quite often what is logical just isn’t legal, and that can be tricky for many managers and HR professionals.  It trips them up.  That’s why one of my favorite topics to speak about is Employment Law Bloopers and Lessons Learned.

If you are interested in this topic, and like to learn employment law from stories (instead of detailed powerpoints with dense legal citations), then you have two chances to come hear me speak.  First, on August 28th at the California HR Conference in Long Beach, and second on August 29th at the FIRMA (Foodservice Industry Risk Management Association) Conference in Fullerton.

65071107 – woman hand writing what have you learned? on blank transparent board with a marker isolated over water background. business concept. stock photo

One of the bloopers I will be talking about is “Ignoring Warning Signs from Top Performers.”  Those who read my blog posts know this is an issue close to my heart.  And it is all over the news regardless of industry, from tech, to media, to entertainment, to universities and more.  Other bloopers involve skipping steps when dealing with the interactive process and reasonable accommodation, retaliation, and the mistakes people make with emails and social media (like those texts we see in litigation from managers to employees sent in the wee hours of the morning on issues unrelated to work … you get the idea).

Come be entertained on August 28th or 29th and learn a few things too!

Have you ever seen one of those workplace training videos and thought “I could do that?”  Well I did that!

I am excited to be featured in a training video to assist workplace supervisors in recognizing and responding to common legal issues that arise in the day-to-day management of workers.  The video was developed and produced by Kantola Productions and is titled “Employment Laws: What Supervisors Need To Know.”

The video focuses on the decision-making process and provides helpful strategies for ensuring compliance with national workplace laws and regulations, covering topics such as:

  • Accommodation requests
  • Safety concerns
  • Social media and related privacy expectations
  • Wage and hour compliance challenges

The DVD retails for $289 and is available to Fox Rothschild clients and their contacts at a 20% discount.  Please enter Fox20 in the “catalog code” box when filling out the online purchase form.

Take a look at a clip from the video below.  Enjoy!


A December 2016 publication from the EEOC titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights” doesn’t exactly break new ground. It does, however, highlight issues that arise repeatedly in disability discrimination cases and, therefore, bear repeating. Here are the key takeaways:

  1. The definition of what constitutes a disability is broader than many realize. The guidance tells employees: “You can get a reasonable accommodation for any mental health condition that would, if left untreated, ‘substantially limit’ your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other ‘major life activity.'” That’s the EEOC’s standard. California’s is even broader.

    Copyright: arquiplay77 / 123RF Stock Photo
    Copyright: arquiplay77 / 123RF Stock Photo
  2. As the guidance warns, employers deciding whether someone can perform the essential functions of a position or whether they pose a significant risk to others may not rely on “myths or stereotypes.” Instead, employers must base those decisions on objective evidence.
  3. Employers trying to gather objective evidence face conflicting obligations. On one hand, they need to understand the employee’s limitations so that they can make an informed decision on offering an accommodation. On the other, they are limited in terms of what they can ask by the employee’s privacy rights. The guidance cautions employees that they may need to disclose information concerning a mental condition when seeking a reasonable accommodation. A publication issued contemporaneously, “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work,” informs healthcare providers that they also may need to make certain disclosures, provided that they have their patients’ written authorization. In light of these conflicting obligations, employers should focus on the employee’s specific limitations, rather than their underlying cause or diagnosis. Employers also need to ensure that any medical information they do receive is kept confidential.
  4. The way to gather objective evidence on an employee’s limitations and possible accommodations is through the interactive process. Employers need to engage their workers in a frank discussion of the essential functions of the position, whether the employee can perform those essential functions, and what accommodations may be available. I discuss what the interactive process requires in more detail here.
  5. Flexibility is key. The employer must be open to different accommodations that may enable the employee to perform the essential functions of the job. (Here’s a list of possible accommodations.) If a particular accommodation turns out to be ineffective, the employer must consider alternatives. If no accommodation will enable the employee to perform the essential functions of the position, the employer must consider moving the employee to other available positions or placing the employee on an unpaid leave. Considering the employee for other open positions requires more than telling them to apply for whatever interests them. In California, it requires giving the employee “preferential consideration.”
  6. Employers only need to offer a leave of absence if it will help the employee get to a point where he or she can return to work in some capacity. Also, employers don’t have to grant indefinite leaves.
  7. An employer doesn’t have to hire or keep people in jobs they can’t perform.” That encouraging statement comes straight from the EEOC’s guidance. It also cautions employees that “an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.”

This remains one of the more complicated areas of employment law. Employers that don’t understand the extent of their obligations expose themselves to costly litigation and government investigations.

The year end is a time for reflection, and one theme in my practice this year has been the failure of managers (and some HR professionals) to fully understand the interactive process, and to inadvertently cause liability by imposing a 100% healed policy.

Here’s how it often works.  An employee goes out for a medical issue, sometimes work-related, sometimes not.  At some point the employee reaches out about returning to work with some sort of restrictions.

  • The manager believes these restrictions will prevent the employee from performing the job as needed, emails HR and indicates an inability to accommodate the restrictions, and the HR manager takes the manager at her/his word.
  • It is communicated back to the employee that she/he can’t return to work until 100% healed, or fully able to do the job, or similar words.
  • What we have here is a documented example of failure to engage in the interactive process, which equals liability.  Not helpful.
Speech bubbles
Copyright: rawpixel / 123RF Stock Photo

Here’s how it should work.  The same employee raises a medical issue and reaches out about returning to work with some restrictions.

  • The manager partners with HR to get more details on those restrictions, clarify the scope of those restrictions with the  employee as needed (i.e. interact), and documents those discussions.
  • They review the job description (if one exists) to see what is listed as an essential function of the job, understand how others have been accommodated (or not accommodated) in similar situations, and evaluate whether the employee can or cannot perform the essential functions of the job with any accommodation (whether requested or not).
  • They further discuss with the employee (i.e. interact) and document those discussions.
  • Care is taken to be consistent with accommodations granted (or not granted).
  • No one uses the term 100% healed.
  • What we have here is a documented example of engaging in the interactive process, which should equal no liability.  Very helpful.

While both scenarios can yield the same result, one is a trigger for liability, and one is a great defense to a disability discrimination or failure to accommodate/engage in the interactive process claim.  The choice is yours.  And remember, if at first you don’t succeed, try, try again!


I recently participated in a panel discussion about ADA/FEHA reasonable accommodation and interactive process issues for the LA County Bar Association. I presented on a panel with a plaintiff’s attorney and a disability rights expert/mediator.

Doctor's note
Copyright: hvostik / 123RF Stock Photo

Despite our differing points of view, there were many things we agreed upon, including the need for employers and employees to actively engage together in an interactive dialogue (not monologue) about requested accommodations, and what might work for both the employer and the employee. We agreed that it was necessary and helpful for the employer to document those communications, not only to prove they occurred if challenged, but to avoid misunderstandings. We also agreed that the employer is not required to provide the exact accommodation requested if there are other reasonable accommodations that would achieve the desired result.

Another thing we agreed on was the need for consistency in accommodations, and the problems that occur when one employee is granted a type of accommodation (such as a special parking spot or a schedule change) and another is not, and there is no clear reason why. On that issue, the attendees seemed to like my idea of keeping a Reasonable Accommodation Log, to track how certain issues are accommodated company-wide, and to promote consistency across departments or divisions.

However, one issue that sparked a lot of debate among the panelists (and attendees) was my recommendation to employers to consistently request a doctor’s note to substantiate requests for accommodations, and to facilitate the interactive process. My advice was based on my experience with employees who ask for the moon (such as the stated need for a walking desk, or first class air travel, or a job transfer to a role for a preferred supervisor), but often can’t substantiate those requests with any medical requirement. I argued that since many disabilities are not visible, that accommodation requests can’t be properly evaluated without medical justification. Plus, if you ask for doctor’s notes from some, and not others, then you run into a consistency problem. So my vote is for doctor’s notes.

Boy did I get push-back! My other panelists argued that it is hard for an employee to get a doctor’s note, and often the doctor doesn’t write what they need. They also argued that requiring a note for a small request, or for successive requests, could amount to harassment. I was challenged:  If someone is in a wheelchair are you going to require a note for every structural issue needed to grant full access? To raise the desk, widen the doorway, order transcription equipment, etc.? My answer was “of course not.” I responded that one doctor’s note should cover all of those issues.

So employers are in a bind. If you don’t ask for a doctor’s note, and you accommodate someone out of goodwill, then you could be stuck with that accommodation for a very long time, because once you give it, it is presumed reasonable, and there is a high burden to take it away (which is why some accommodations should be documented as “temporary” by the way). But if you insist on a doctor’s note, the employee feels harassed and pressured.

So what is the answer? I still believe employers should consistently get doctor’s notes, and actually review them to make sure they support the requested accommodation. But ask for them nicely, and be open to granting a temporary accommodation in the meantime.

Reasonable accommodation issues are tough.  Employees often want a lot of things that are not justified by a doctor’s note, and appropriately documenting the interactive process can be an uphill battle.

If you are in the LA area and have burning questions about how to reasonably accommodate employees under the ADA and California’s FEHA, then please come hear me speak for the LACBA on October 27th.  Topics for discussion will include:

  • Disability Leave:  How long is too long?  How long do you have to keep the job open during the leave?
  • Interactive Process Communications:  If there is no documentation, can you prove they occurred?
  • Undue Hardship:  Is it ever too hard to accommodate?  How expensive is too much?
  • Assistive Technology:  How does new technology change what’s reasonable? (i.e., is everyone entitled to a headset and a standing or walking desk?)

If you can’t make it, look for a blog post next week on tips discussed and lessons learned.