Workplace Disability Accommodations and the Interactive Process Under FEHA and the ADA
Estimated reading time: ~10 minutes
Disability accommodation issues are among the most complex and legally risky areas of employment law, requiring employers to balance legal compliance, operational needs, and individualized human factors. Under both the California Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to qualified employees and applicants with disabilities and to engage in a timely, good-faith interactive process, identify and implement those accommodations, and to periodically reassess their ongoing effectiveness. Despite the familiarity of these concepts, failures in this area remain one of the most common sources of costly employment litigation in California.
What often creates risk for employers is not bad intent, but misunderstanding how broadly disability is defined, how individualized the analysis must be, and how important meaningful engagement and documentation are in evaluating accommodation issues and, when necessary, later proving a legally compliant process was followed.
What Qualifies as a Disability Under FEHA and the ADA
Both FEHA and the ADA protect employees with physical and mental disabilities, but FEHA is intentionally broader. Under FEHA, a disability is any physical or mental condition that limits a major life activity, while the ADA requires a “substantial limitation.” As a result, many conditions that may fall outside federal coverage are still protected under California law.
Physical disabilities may involve conditions affecting musculoskeletal, neurological, cardiovascular, respiratory, endocrine, immune, or sensory systems. Mental disabilities may include depression, anxiety disorders, PTSD, bipolar disorder, learning disabilities, and other psychological or cognitive impairments. The analysis does not turn on labels or diagnoses alone. The focus is on whether the condition limits a major life activity such as working, concentrating, thinking, communicating, standing, walking, or using extremities.
Because FEHA casts such a wide net, employers are generally better served by assuming coverage and focusing on compliance with the interactive process rather than litigating threshold questions about whether a condition qualifies.
Essential Functions Versus Marginal Functions
A central concept in accommodation analysis is the distinction between essential and marginal job functions. Essential functions are the fundamental duties of the position—the tasks that are core to why the job exists. Marginal functions are incidental or peripheral duties that are not central to the role.
An employee must be able to perform the essential functions of the job, with or without reasonable accommodation, to be considered qualified. Employers are not required to eliminate essential functions as an accommodation, but they may be required to modify or reassign marginal duties if doing so enables the employee to perform the core responsibilities of the position.
Courts frequently look to job descriptions, the employer’s actual practices, and how the role is structured in practice when evaluating whether a function is truly essential. Maintaining accurate, up-to-date job descriptions before accommodation issues arise is therefore critical.
When the Duty to Engage in the Interactive Process Is Triggered
The duty to engage in the interactive process arises when an employer becomes aware that an employee may need an accommodation. This can occur through a direct request, submission of medical documentation, observation of functional limitations, or other reliable information suggesting that a medical condition may be affecting the employee’s ability to perform job duties.
Employees are not required to use legal terminology or formally request a “reasonable accommodation” to trigger this obligation. California courts have made clear that the duty arises when the employer knows or should know of the employee’s need for accommodation. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61–62.)
A common and often overlooked trigger is a pattern of absenteeism, tardiness, or health-related attendance issues, even where those absences are not themselves protected under other statutes such as California’s Paid Sick Leave law. Repeated call-outs, unreliable attendance, or illness-related performance issues may reasonably suggest an underlying medical condition that could qualify as a disability under FEHA.
In those circumstances, employers should consider notifying the employee that disability accommodations may be available and offering to engage in the interactive process. This step is particularly important where attendance or reliability concerns may lead to escalating discipline or discharge. FEHA’s interactive process obligation is reciprocal. While employers must initiate and participate in the process in good faith, employees must also cooperate and provide information necessary to evaluate accommodation options. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.)
Creating a clear record that the employee was informed of the availability of accommodations and given an opportunity to request them, but declined or failed to follow through can provide important protection if the employee later claims that attendance based discipline was unlawful because the absences were disability related.
A Practical Framework for the Employer’s Response
Once accommodation issues are identified, employers should proceed deliberately and methodically. The first step is to notify the employee that accommodations may be available and invite participation in the process. Where the need for accommodation is not obvious, employers may request reasonable medical certification confirming the existence of a qualifying condition and describing the employee’s functional limitations.
Medical inquiries should focus on work-related limitations and restrictions, not diagnoses, and should avoid unnecessary intrusion into confidential medical information. If the information provided is unclear or ambiguous, employers should seek clarification rather than making assumptions.
The next step is to assess the employee’s functional limitations in relation to the essential functions of the job. Common physical work restrictions involve lifting limits, standing or walking tolerances, restrictions on bending, stooping, climbing, reaching, or use of one or both extremities. Mental or cognitive limitations may involve concentration, stress tolerance, pace, or interpersonal interaction.
The employer should then meet with the employee to engage in the interactive process. This is a collaborative discussion aimed at identifying barriers to successful performance and exploring accommodations that remove those barriers. The purpose of the process is not to test the employee’s resolve, but to identify workable solutions.
In appropriate cases, temporary leave may be a reasonable accommodation, particularly where it allows the employee to seek treatment or recover and return to work within a foreseeable timeframe. Employers are generally not required to provide indefinite leave with no anticipated return-to-work date, but each situation must be evaluated individually.
Employees may also be eligible for other forms of legally protected, temporary medical leave, such as under the California Family Rights Act (CFRA), the Family and Medical Leave Act (FMLA), Pregnancy Disability Leave (PDL), or Paid Sick Leave (PSL), for example. Continued temporary leave beyond the expiration of these statutorily protected leaves as a form of disability accommodation is common, where indicated due to a qualifying disability.
Reasonable Accommodation Does Not Mean Identical Treatment
Accommodation decisions must be individualized. Disabilities differ, limitations differ, job duties differ, and operational constraints differ. Providing an accommodation to one employee does not mean the employer must provide the exact accommodation to all others, including non-disabled employees. FEHA does not impose a “what must be done for one must be done for all” rule, and a common mistake made by employers is refusing an accommodation based on this faulty premise.
Similarly, coworker perceptions of fairness are not controlling. While employers may consider operational impact in their undue hardship analysis of the reasonableness of a particular accommodation, generalized coworker resentment or a desire for uniform treatment does not excuse failure to accommodate. The legal focus remains on the individual employee’s limitations and the employer’s ability to accommodate them without undue hardship.
Undue Hardship: A High, Fact-Specific Standard
An employer is not required to provide an accommodation that would impose an undue hardship. Under FEHA, undue hardship means significant difficulty or expense when considered in light of the employer’s size, resources, structure, and operational needs. This is a demanding, fact-specific standard, and the burden rests with the employer.
Generalized claims of inconvenience, marginal added cost, minor disruption or inefficiency, coworker morale or perceived unfairness to other employees, will not be sufficient. Employers must carefully analyze and document the specific reasons an accommodation would be unworkable when compared against the essential functions the employee is actually performing and consider alternative accommodations before concluding that undue hardship exists.
Special Considerations: Seating and Physical Work Requirements
Employers should also remember that accommodation issues do not exist in a vacuum. California’s Labor Code includes a suitable seating requirement when the nature of the work reasonably permits sitting. This obligation applies even to non-disabled employees and must be considered carefully when evaluating accommodation requests involving standing, fatigue, or musculoskeletal limitations.
Because suitable seating may already be legally required in certain roles for even non-disabled employees, employers should be cautious about asserting undue hardship where seating is requested and the nature of the work reasonably permits it without an undue hardship.
In Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, the California Supreme Court clarified that the suitable seating analysis cannot be applied at a high level based solely on a job title or position. Instead, employers must break a job into its individual duties and assess whether each duty can reasonably be performed while seated. The decision established that suitable seating is a task-by-task inquiry, requiring employers to look at how work is actually performed in practice.
Documentation, Reevaluation, and Ongoing Obligations
Documentation and employer-employee engagement are critical at every stage. Employers should communicate both orally and in writing, ideally face-to-face when feasible, document when requests were made, what information was reviewed, what options were considered, and what accommodations were implemented. Careful notes of dates, times, participants, and the substantive discussions of interactive meetings should be kept. Accommodations should be confirmed in writing to ensure clarity and consistency.
Accommodation obligations are also ongoing. Conditions change, job duties evolve, and accommodations that once worked may no longer be effective. Employers should periodically reevaluate accommodations and reengage in the interactive process when circumstances warrant.
Conclusion
Disability accommodation issues require thoughtful, individualized analysis grounded in good-faith communication and careful documentation. Employers who focus on functional limitations, essential job functions, and practical solutions, rather than rigid rules, assumptions, or avoidance altogether, are far better positioned to comply with FEHA and the ADA while supporting employee productivity and retention.
Because these issues are highly fact-dependent and legally nuanced, employers should seek legal guidance when navigating complex accommodation scenarios, evaluating undue hardship, or managing evolving medical restrictions. Proactive engagement and careful process remain the most effective tools for reducing risk in this closely regulated and highly litigated area of California employment law.