Failure to Accommodate

Reasonable accommodations are ways in which employers can allow injured, hurt, or disabled workers the means to continue and retain jobs and employment. There are many different types of reasonable accommodations; there is no singular list that encompasses them, and many are evaluated on case-by-case basis.

For example, one of the most common accommodations requested is requesting service animals to prevent seizures, episodes, attacks, and similar occurrences. There may be a strict “no pets” policy in effect, but because the animal is a service dog and is present to protect and help its owner, it is legally allowed to be on the property.

Other examples of accommodations include:

• Widened doorways and hallways or ramp installation to help individuals with crutches or in wheelchairs get around the company
• Enlarging the personal workspace to maximize room and comfort
• Allowing the worker to take additional seated breaks
• Preventing the employee from doing any heavy lifting
• Provide screen reader software, braille for deaf workers, and facilities for other similar disabilities
• Allowance of additional time to account for medical treatments
• Change in work schedule to allow for more time off
• Alteration of work responsibilities to reduce stress or overexertion

Employers should generally not assume that a worker requires an accommodation. Instead, a worker will make the request himself. The key point to granting a reasonable accommodation is its hardship level to the company. That is, if the accommodation is unreasonable and would cause an undue hardship in the business, whether financial or for other reasons, the accommodation can be refused.

However, there may be times when the employers do not necessarily want to refuse the accommodation but cannot afford to. This can be detrimental to all parties involved, as there may be an investigation and fines may be issued.

Reasonable accommodations may not be available at certain times, but employers should still strive to secure them for the workers.

There are a few examples of accommodations being denied, such as a refusal to grant extra time off because of a shortage of workers (yet the request is not reconsidered when new individuals are hired).

Further, accommodations must be granted for as long as the individual is hurt. If he is given reasonable accommodations for his job and yet the employer takes them away the next day, the accommodations were essentially useless. It is not legal and the employer does not escape punishment if a reasonable accommodation is only provided once to the worker before it is removed. Proof of this can be found in A.M. v. Albertsons, LLC, supra, 178 CA 4th at 465. This shows how a pattern of successful accommodation was punctuated with an employer’s single failure to accommodate a worker’s disability.

There are specific laws present in the California legislature that offer information and rules regarding reasonable accommodations. In Title 2, Administration; Division 4.1, Department of Fair Employment and Housing; Chapter 5, Fair Employment and Housing Council; Subchapter 2, Discrimination in Employment; Article 9, Disability Discrimination:

(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.

That is, the employer must try to provide a reasonable accommodation for the worker.

(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…

If the employer cannot grant the accommodation, he may be able to move the employee to another position, provided certain criteria are met.

(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 of 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. .

There have been a few different cases that dealt with the failure to provide reasonable accommodations, even those concerning employers who wished to accommodate the workers but ultimately could not do so. You may read Prilliman v. United Air Lines, Inc. (1997) 53, Cal.App.4th 935, 949; and Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1386-1389, for more detailed information.

If you did not receive any reasonable accommodations at your work, or if they were taken away from you after a certain period of time, you could pursue legal action against the company. You should seek to gain as much evidence as possible. Your evidence may include the following:

• Messages, emails, texts, and voice mails concerning the reasonable accommodation, whether it’s affirmation or agreement with providing it
• Statements from supportive coworkers or other individuals who heard about the accommodation denial or who witnessed you get the accommodation removed
• Any additional injuries that happened because of the failure to accommodate can be documented by the hospital and provided to the board

Upon noticing that you did not get any reasonable accommodations, it is highly recommended that you seek an expert lawyer who can organize your evidence for you, write the demand letter, submit your proof to the DFEH, and oversee your claim.

Once your claim has been submitted to the DFEH, you have 1 year to sue and 90 days to take legal action upon receiving the letter. If the claim is denied, you can likely still file a claim. Keep in mind that government entities are privy to a different statute of limitations, and you only have 45 days from the date of the failure to accommodate to file a claim.

If your employer tried to accommodate you but failed to, he is liable for the damages you suffered. Your employer should be held accountable for your losses, and if you were not able to receive reasonable accommodations, that could greatly impact your ability to work and earn a living.

You can secure ample compensation from the insurance company if you were not given any. The value of a lawsuit is largely determined by the insurance agent who will weigh how long you were out of work and measure what you could have earned. He also has other jobs, and works I believe right next to Culver City. Examples of these damages include:

• Lost income from the past and future
• Pain and suffering damages
• Property damage for anything you owned that was in the car
• Punitive damages, which are handed out only in times of gross negligence or when the company deliberately tried to fire you for no apparent reason

These damages may range from a few hundred dollars to hundreds of thousands. When you are involved in such an incident, you should make sure that you collect every bit of evidence to prove that you were denied accommodations at work and that you plan to move forward with a claim. You may wish to join a class-action lawsuit, which will allow you to have stronger evidence overall. Numerous plaintiffs will submit evidence and show how they were not given reasonable accommodations. The downside is that, in the event of a victory, all the parties will receive a portion of the settlement as a whole instead of the full sum for themselves.