Termination is Not a Reasonable Accommodation
If a health condition made it harder for you to do your job, your employer may have been required to explore reasonable accommodations before deciding to fire you.
Employers sometimes treat an employee’s health limitation as the problem instead of asking whether there is a reasonable way to accommodate it.
The thinking can seem almost this simple:
“Your health condition is interfering with your ability to work? Then we’ll terminate you. Come back and reapply when you’re better.”
But termination is not a reasonable accommodation.
California disability law may require an employer to explore whether a reasonable accommodation would allow an employee with a disability to continue working—or, in some circumstances, take time away from work and return.
Depending on the employee and the job, that might mean modifying a schedule, changing how a task is performed, modifying an attendance policy, providing medical leave, extending an existing leave, or considering another effective accommodation.
The important question is often what the employer did before deciding that termination was the answer.
What Is A Reasonable Accommodation?
A reasonable accommodation is a change or adjustment that allows an employee with a disability to perform the essential functions of the job or otherwise have equal access to employment opportunities.
There is no single accommodation that works for every employee or every job. Depending on the circumstances, a reasonable accommodation might include:
- A modified work schedule
- Time off for medical appointments
- Modifying how certain job duties are performed
- Equipment or workplace modifications
- Modifying an attendance policy
- Medical leave or additional medical leave
- Reassignment to a vacant position when appropriate
California’s Civil Rights Department identifies changes in job duties, medical leave, schedule changes, relocation of a work area, and mechanical or electrical aids as examples of possible reasonable accommodations.
This is why an employer generally should not jump from “you have a medical limitation” to “we’re terminating your employment.” There is supposed to be a conversation in between.
8.)
My Employer Never Even Talked to Me About Accommodation Before Firing Me
After decades of litigating disability cases, one of the first things I want to know is surprisingly simple: Did anyone actually talk to the employee about what might allow the employee to keep working?
The law calls this the interactive process. In ordinary English, it means the employer and employee are supposed to communicate in good faith about the employee’s limitations and possible reasonable accommodations.
The employer should be trying to understand what limitations are affecting the employee’s ability to work and whether there is a reasonable accommodation that could address them.
Sometimes that conversation starts because the employee specifically asks for an accommodation. But an employee does not necessarily need to know the law or use the words “reasonable accommodation” to trigger the employer’s obligations. An employer’s obligation to initiate the interactive process can also arise when the employer becomes aware of a possible need for accommodation.
The interactive process is supposed to help answer the question:
Is there a reasonable way for this employee to continue working—or return to work—instead of losing the job?
I Used All My FMLA or CFRA. Can Additional Medical Leave Still Be A Reasonable Accommodation?
Yes, potentially. This is one of the most important—and most misunderstood—parts of California disability law.
FMLA and CFRA are not the end of the analysis.
Under California disability law, paid or unpaid medical leave may itself be a reasonable accommodation. The regulations specifically recognize that this can include extending leave provided by CFRA, FMLA, another leave law, or an employer’s own leave plan when the additional leave is likely to allow the employee to return to work and does not create an undue hardship for the employer. Indefinite leave, however, is not required.
So even if:
- You have not worked long enough to qualify for FMLA or CFRA;
- Your employer is not covered by one of those leave laws;
- You have exhausted the statutory leave available to you;
- Your employer says you have exhausted its internal leave allowance; or
- The additional leave would be unpaid;
that fact alone does not necessarily answer whether additional medical leave should have been considered as a reasonable accommodation.
This comes up constantly in the cases I handle. An employer focuses on whether the employee has any “leave” remaining without separately considering whether additional time away from work may be a reasonable accommodation for a disability.
Those are not necessarily the same question.
My Employer Says I Have Been Out Too Long and That I Must Return With No Restrictions
This is another situation I would want to examine closely.
An employee may provide medical documentation, remain in contact with the employer, and have a doctor provide an anticipated return-to-work date—only to be told that the company has reached the maximum amount of leave it will provide.
The existence of a company leave policy does not eliminate the employer’s separate obligations under California disability law.
The question may still be whether additional leave would be an effective reasonable accommodation and whether providing it would impose an undue hardship on the employer. California’s reasonable-accommodation process requires an individualized assessment rather than simply assuming the same answer applies to every employee.
Regarding the return with no restrictions requirement, the point of reasonable accommodation law is not that every employee must become completely healthy before returning to work. An employee may be able to perform the essential functions of the job with reasonable accommodation.
If your doctor released you to work with restrictions and your employer responded that you could return only when you were “100%,” “fully released,” or had “no restrictions,” the important question is what happened next.
Did the employer determine whether your restrictions actually prevented you from performing an essential function of your job?
Did anyone discuss possible accommodations with you?
Could you have performed the job with an accommodation?
Or did the employer simply refuse to let you return until you had no medical restrictions at all?
Those are very different situations.
What If I Can No Longer Do My Old Job Because of My Disability?
Reasonable accommodation does not necessarily end with your existing position.
In some circumstances, if an employee can no longer perform the essential functions of the current job even with accommodation, California law requires the employer to consider reassignment to a suitable vacant position for which the employee is qualified.
That does not mean an employer has to invent a new position or remove another employee from a job.
But if you could no longer perform your existing job because of a disability and your employer fired you without exploring whether an appropriate vacant position existed, that may be important.
This is another reason I want to know what the employer actually did during the interactive process—not simply what reason appears on the termination letter.
What If My Employer Says That Accommodating Me Would Be Too Difficult?
Employers are not required to provide every accommodation an employee requests.
A reasonable accommodation that would impose an undue hardship on the employer may not be required. California law considers the particular accommodation, the employer, its operations, and the circumstances rather than applying a single rule to every workplace.
But there is an important distinction between an accommodation actually creating an undue hardship and an employer simply preferring not to provide it.
Medical Leave Can Be A Reasonable Accommodation
Sometimes an employee cannot work at all for a period of time because of a disability.
Medical leave can itself be a reasonable accommodation when time away from work for treatment or recovery is likely to allow the employee to return and the leave does not create an undue hardship. California’s regulation expressly recognizes this.
This can include extending leave after FMLA, CFRA, another statutory leave, or an employer’s own leave plan has ended.
It does not mean every requested leave must be granted. California law does not require indefinite leave as a reasonable accommodation.