Cal. Code Regs. Tit. 2, § 11068 - Reasonable Accommodation
(a) Affirmative Duty. An employer or other
covered entity has an affirmative duty to make reasonable accommodation(s) for
the disability of any individual applicant or employee if the employer or other
covered entity knows of the disability, unless the employer or other covered
entity can demonstrate, after engaging in the interactive process, that the
accommodation would impose an undue hardship.
(b) No elimination of essential job function
required. Where a quality or quantity standard is an essential job function, an
employer or other covered entity is not required to lower such a standard as an
accommodation, but may need to accommodate an employee with a disability to
enable him or her to meet its standards for quality and quantity.
(c) Paid or unpaid leaves of absence. When
the employee cannot presently perform the essential functions of the job, or
otherwise needs time away from the job for treatment and recovery, holding a
job open for an employee on a leave of absence or extending a leave provided by
the CFRA, the FMLA, other leave laws, or an employer's leave plan may be a
reasonable accommodation provided that the leave is likely to be effective in
allowing the employee to return to work at the end of the leave, with or
without further reasonable accommodation, and does not create an undue hardship
for the employer. When an employee can work with a reasonable accommodation
other than a leave of absence, an employer may not require that the employee
take a leave of absence. An employer, however, is not required to provide an
indefinite leave of absence as a reasonable accommodation.
(d) Reassignment to a vacant position.
(1) As a reasonable accommodation, an
employer or other covered entity shall ascertain through the interactive
process suitable alternate, vacant positions and offer an employee such
positions, for which the employee is qualified, under the following
circumstances:
(A) if the employee can no
longer perform the essential functions of his or her own position even with
accommodation; or
(B) if
accommodation of the essential functions of an employee's own position creates
an undue hardship; or
(C) if both
the employer and the employee agree that a reassignment is preferable to being
provided an accommodation in the present position; or
(D) if an employee requests reassignment to
gain access to medical treatment for his or her disabling condition(s) not
easily accessible at the current location.
(2) No comparable positions. If there are no
funded, vacant comparable positions for which the individual is qualified with
or without reasonable accommodation, an employer or other covered entity may
reassign an individual to a lower graded or lower paid position.
(3) Reassignment to a temporary position.
Although reassignment to a temporary position is not considered a reasonable
accommodation under these regulations, an employer or other covered entity may
offer, and an employee may choose to accept or reject, a temporary assignment
during the interactive process.
(4)
The employer or other covered entity is not required to create a new position
to accommodate an employee with a disability to a greater extent than an
employer would offer a new position to any employee, regardless of
disability.
(5) The employee with a
disability is entitled to preferential consideration of reassignment to a
vacant position over other applicants and existing employees. However,
ordinarily, an employer or other covered entity is not required to accommodate
an employee by ignoring its bona fide seniority system, absent a showing that
special circumstances warrant a finding that the requested accommodation is
reasonable on the particular facts, such as where the employer or other covered
entity reserves the right to modify its seniority system or the established
employer or other covered entity practice is to allow variations to its
seniority system.
(e) Any
and all reasonable accommodations. An employer or other covered entity is
required to consider any and all reasonable accommodations of which it is aware
or that are brought to its attention by the applicant or employee, except ones
that create an undue hardship. The employer or other covered entity shall
consider the preference of the applicant or employee to be accommodated, but
has the right to select and implement an accommodation that is effective for
both the employee and the employer or other covered entity.
(f) An employer shall not require a qualified
individual with a disability to accept an accommodation and shall not retaliate
against an employee for refusing an accommodation. However, the employer or
other covered entity may inform the individual that refusing an accommodation
may render the individual unable to perform the essential functions of the
current position.
(g) Reasonable
Accommodation for the Residual Effects of a Disability. An individual with a
record of a disability may be entitled, absent undue hardship, to a reasonable
accommodation if needed and related to the residual effects of the disability.
For example, an employee may need a leave or a schedule change to permit him or
her to attend follow-up or monitoring appointments with a health care
provider.
(h) Accessibility
Standards. To comply with section
11065(p)(2)(A), of
this article, the design, construction or alteration of premises shall be in
conformance with the standards set forth by the Division of the State Architect
in the State Building Code, Title 24, pursuant to Chapter 7, Division 5 of
Title 1 of the Government Code (commencing with Government Code section
4450), and
Part 5.5 of Division 13 of the Health and Safety Code (commencing with Health
and Safety Code section
19955).
(i) An employer or other covered entity shall
assess individually an employee's ability to perform the essential functions of
the employee's job either with or without reasonable accommodation. In the
absence of an individualized assessment, an employer or other covered entity
shall not impose a "100 percent healed" or "fully healed" policy before the
employee can return to work after an illness or injury.
(j) It is a permissible defense to a claim
alleging a failure to provide reasonable accommodation for an employer or other
covered entity to prove that providing accommodation to an applicant or
employee with a disability would have created an undue hardship.
(k) It is unlawful to discriminate or
retaliate against a person for requesting reasonable accommodation based on
mental or physical disability, regardless of whether the employer granted the
request.
Notes
2. Amendment of subsection (e) and new subsection (k) filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).
Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1 and 12940, Government Code.
2. Amendment of subsection (e) and new subsection (k) filed 12-9-2015; operative
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