Ya know, I have been preaching and spreading the word about California’s Fair Employment & Housing Act (FEHA) which makes it very clear that if a manager or supervisor even “perceives” an individual to have a disability they have to engage in an interactive discussion regarding a reasonable accommodation. This is different from federal law which, under the Americans with Disabilities Act (ADA), states that the employee has to request the accommodation.
Well, Albertson’s Grocery store recently found out the hard way that a single incident of failing to accommodate a store employee’s disability by allowing her a restroom was sufficient to support a verdict for failure to accommodate. The facts were simple enough. The employer had previously had a discussion with the employee and agreed that based upon the employee’s disability the employee would be permitted the necessary restroom break. The problem was the employee was granted the accommodation by the human resources representative and the accommodation was never effectively communicated to the store manager. The twist to this case is that the employee had been accommodated and had been able to take her necessary breaks except on one occasion which is the incident that led to the lawsuit.
The court determined that since the employee had been granted the accommodation the employee did not have to continue with the interactive process by notifying the person in charge at the time that she had been granted an accommodation (in other words she knew but the manager on duty at the time of the incident had never been informed about the accommodation and the employee was not required to discuss it or ask for it).
The Department of Fair Employment & Housing does not excuse the failure to accommodate based on previous patterns of successful accommodation. An employer has an absolute duty to ensure that the manager or supervisor of an employee who has been granted an accommodation is informed of the accommodation (not why because of privacy). The employee does not have to keep requesting it even if there is a change in supervision.
Right now, age and disability claims claims are on the rise. Be careful.