Reasonable Accommodation Expert
David Geffen provides expert advice and testimony throughout California on reasonable accommodation in housing (Home Owner's Associations, Apartment Buildings), employment, and public accommodations. Reasonable accommodations are most commonly applied to people with physical or mental disabilities, but can also include accommodations related to religion, or pregnancy.
Mr. Geffen has practiced in state and federal trial and appellate courts since 1987. His experience includes dozens of trials and hundreds of mediations as an attorney, expert, and mediator. Mr. Geffen is an adjunct professor at Loyola Law School of Los Angeles and has lectured, presented, testified, and written about reasonable accommodation issues since 1990.
Mr. Geffen can provide expert analysis, advice, and opinions pertaining to:
- Modifications of work duties and schedules, barrier removal, and policy accommodations in the workplace for small and large private employers, and public entities
- Accommodation requests in apartment buildings, public housing, and Homeowners Associations
- Development of reasonable accommodation policies, forms, and practices for public and private entities, however services are provided (including websites)
- Training on responding to requests for reasonable accommodation
- Monitoring the enforcement of reasonable accommodation policies and settlements
- Identifying appropriate policy modifications and barrier removal when necessary to full and equal access to goods and services in public accommodations (hotels, restaurants, theaters, stadiums, stores, offices, transportation, and any other space to which the public is invited)
Issues that routinely arise in reasonable accommodation include:
- Whether the individual is in a protected class that is covered by state or federal law
- If and when a reasonable accommodation request has been made that requires a response
- What is required in the “interactive process”
- Whether the response is “timely”
- Whether the parties have engaged in the interactive process “in good faith”
- Whether the reasonable accommodation request is “necessary”
- Whether the accommodation request is “reasonable”
- Whether the accommodation requested is an “undue hardship” (financial or administrative)
- Whether the accommodation requested is a "fundamental alteration"
We monitor state and federal regulations and court decisions to stay abreast of the latest law and best practices in reasonable accommodation.
David Geffen can provide clients with a trusted and reliable review of the Interactive Process, and advise on compliance with the FEHA/ADA disability obligations. For employers who have concerns, or are facing litigation, Mr. Geffen can also recommend remedies, if appropriate, to correct any failings in past processes, decisions or failing to document activities with the goal of reducing or limiting litigation exposure.
Here's a free form from the DFEH to assist employers in providing their employees with a Reasonable Accommodation. www.dfeh.ca.gov/wp-content/uploads/sites/32/2021/07/Request-For-Reasonable-Accommodation-Package_ENG.pdf
In Spanish www.dfeh.ca.gov/wp-content/uploads/sites/32/2021/07/Request-For-Reasonable-Accommodation-Package_SP.pdf
Contact us to discuss your reasonable accommodation issues, or to request a CV and rate sheet.
Govt Code 12926
(p) “Reasonable accommodation” may include either of the following:
(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
Check out these very helpful guides and checklists from JAN:
Sample Accommodation Policies and Processes JAN Sample Accommodation Policy and Process
Partner Examples of Accommodation Policy and Processes
- Manager Restrictions and Accommodations Training (.ppt)
- Effective Communications to Reduce Disability Stigma within your Organization (.pptx)
- Accommodation Request Form
- Medical Inquiry Request Form
- Accommodation Approval Form
- Onboarding Form
- Temporary or Trial Accommodation Approval Form
- Monitoring Form
- Denial Form
- Appeals Form
- Plan of Action Form
- ADA Request Form
- Accommodation Request Form
- Accommodation Assessment Form
- Doctor’s Medical Evaluation
- Medical Authorization Form
- Medical Evaluation Form
- Physical Capacities Form
- Return to Work Functional Assessment Form
- Fitness-for-Duty – Return to Work Release
- Mental Health Work Function Assessment
- SF.HR Job Aid
- Accommodation Tracking Spreadsheet Sample
- There are also several vendors who provide tracking software.
2 CCR § 11068
(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.
Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1 and 12940, Government Code.
2 CCR § 11069
§11069. Interactive Process.
(a) Interactive Process. When needed to identify or implement an effective, reasonable accommodation for an employee or applicant with a disability, the FEHA requires a timely, good faith, interactive process between an employer or other covered entity and an applicant, employee, or the individual's representative, with a known physical or mental disability or medical condition. Both the employer or other covered entity and the applicant, employee or the individual's representative shall exchange essential information identified below without delay or obstruction of the process.
(b) Notice. An employer or other covered entity shall initiate an interactive process when:
(1) an applicant or employee with a known physical or mental disability or medical condition requests reasonable accommodations, or
(2) the employer or other covered entity otherwise becomes aware of the need for an accommodation through a third party or by observation, or
(3) the employer or other covered entity becomes aware of the possible need for an accommodation because the employee with a disability has exhausted leave under the California Workers' Compensation Act, for the employee's own serious health condition under the CFRA and/or the FMLA, or other federal, state, employer or other covered entity leave provisions and yet the employee or the employee's health care provider indicates that further accommodation is still necessary for recuperative leave or other accommodation for the employee to perform the essential functions of the job. An employer's or other covered entity's offer to engage in the interactive process in response to a request for such leave does not violate California Code of Regulations, title 2, section 11091(b)(1) & (b)(2)(A)1., prohibiting inquiry into the medical information underlying the need for medical leave other than certification that it is a “serious medical condition.”
(c) Obligations of Employer or Other Covered Entity. An employer or other covered entity shall engage in a timely, good faith, interactive process as follows:
(1) The employer or other covered entity shall either grant the applicant's or employee's requested accommodation, or reject it after due consideration, and initiate discussion with the applicant or employee regarding alternative accommodations.
(2) When the disability or need for reasonable accommodation is not obvious, and the applicant or employee has not already provided the employer or other covered entity with reasonable medical documentation confirming the existence of the disability and the need for reasonable accommodation, the employer or other covered entity may require the applicant or employee to provide such reasonable medical documentation.
(3) When the employer or other covered entity has received reasonable medical documentation, it shall not ask the applicant or employee about the underlying medical cause of the disability, but may require medical information, as set forth in section 11071 below, and second opinions from other health care providers.
(4) If information provided by the applicant or employee needs clarification, then the employer or other covered entity shall identify the issues that need clarification, specify what further information is needed, and allow the applicant or employee a reasonable time to produce the supplemental information.
(5) When needed to assess a requested accommodation or to advance the interactive process, the employer or other covered entity shall analyze the particular job involved and the essential functions of the job.
(6) When needed to assess a requested accommodation or to advance the interactive process, the employer or other covered entity may consult experts.
(7) In consultation with the applicant or employee to be accommodated, the employer or other covered entity shall identify potential accommodations and assess the effectiveness each would have in enabling the applicant to have an equal opportunity to participate in the application process and to be considered for the job; or for the employee to perform the essential function of the position held or desired or to enjoy equivalent benefits and privileges of employment compared to non-disabled employees.
(8) The employer or other covered entity shall consider the preference of the applicant or employee to be accommodated, but has the right to implement an accommodation that is effective in allowing the applicant or employee to perform the essential functions of the job.
(9) If reassignment to an alternate position is considered as an accommodation, the employer or other covered entity may ask the employee to provide information about his or her educational qualifications and work experience that may help the employer find a suitable alternative position for the employee, and shall comply with section 11068(d).
(d) Obligations of Applicant or Employee. The applicant or employee shall cooperate in good faith with the employer or other covered entity, including providing reasonable medical documentation where the disability or the need for accommodation is not obvious and is requested by the employer or other covered entity, as follows:
(1) Reasonable medical documentation confirms the existence of the disability and the need for reasonable accommodation. Where necessary to advance the interactive process, reasonable medical documentation may include a description of physical or mental limitations that affect a major life activity that must be met to accommodate the employee. Disclosure of the nature of the disability is not required.
(2) If reassignment to an alternate position is considered as an accommodation, the employee shall provide the employer or other covered entity information about his or her educational qualifications and work experience that may help the employer or other covered entity find a suitable alternative position for which the employee is qualified and for which the employee can perform the essential functions.
(3) An employee's mental or physical inability to engage in the interactive process shall not constitute a breach in either the employee's or the employer's obligation to engage in a good faith interactive process.
(4) Direct communications between the employer or other covered entity and the applicant or employee rather than through third parties are preferred, but are not required.
(5) Required medical information. Where the existence of a disability and/or the need for reasonable accommodation is not obvious, an employer or other covered entity may require an applicant or employee to obtain and provide reasonable medical documentation from a health care provider that sets forth the following information:
(A) The name and credentials of the health care provider, which establish that the individual falls within the definition of “health care provider” under section 11065(i), of these regulations.
(B) That the employee or applicant has a physical or mental condition that limits a major life activity or a medical condition, and a description of why the employee or applicant needs a reasonable accommodation to have an equal opportunity: to participate in the application process and to be considered for the job, or to perform the employee's job duties, or to enjoy equal benefits and privileges of employment compared to non-disabled employees. The employer or other covered entity shall not ask for unrelated documentation, including in most circumstances, an applicant's or employee's complete medical records, because those records may contain information unrelated to the need for accommodation.
(C) If an applicant or employee provides insufficient documentation in response to the employer's or other covered entity's initial request, the employer or other covered entity shall explain why the documentation is insufficient and allow the applicant or employee an opportunity to provide supplemental information in a timely manner from the employee's health care provider. Thereafter, if there is still insufficient documentation, the employer may require an employee to go to an appropriate health care provider of the employer's or other covered entity's choice.
1. Documentation is insufficient if it does not specify the existence of a FEHA disability and explain the need for reasonable accommodation. Where relevant, such an explanation should include a description of the applicant's or employee's functional limitation(s) to perform the essential job functions.
2. Documentation also might be insufficient where the health care provider does not have the expertise to confirm the applicant's or employee's disability or need for reasonable accommodation, or other objective factors indicate that the information provided is not credible or is fraudulent.
(6) If an applicant or employee provides insufficient documentation, as described above, an employer or other covered entity still must provide reasonable accommodation but only to the extent the reasonable accommodation is supported by the medical documentation provided to date. If the medical documentation provided to date does not support any reasonable accommodation, no reasonable accommodation need be required. If supplemental medical documentation supports a further or additional reasonable accommodation, then such further or additional reasonable accommodation shall be provided.
(7) Any medical examination conducted by the employer's and other covered entity's health care provider must be job-related and consistent with business necessity. This means that the examination must be limited to determining the functional limitation(s) that require(s) reasonable accommodation.
(8) If an employer or other covered entity requires an employee to go to a health care provider of the employer's or other covered entity's choice, the employer or other covered entity shall pay all costs and allow the employee time off for the visit(s). An employee may use sick leave for the time off.
(9) If an employee requests, as a reasonable accommodation, leave on an intermittent or reduced-schedule basis for planned medical treatment of the employee's disability, reasonable medical documentation includes information that is sufficient to establish the medical necessity for such intermittent or reduced-schedule leave and an estimate of the dates and duration of such treatments and any periods of recovery.
(10) If an employee requests leave on an intermittent or reduced-schedule basis for the employee's disability that may result in unforeseeable episodes of incapacity, such as the onset of migraines or epileptic seizures, reasonable medical documentation includes information that is sufficient to establish the medical necessity for such intermittent or reduced-schedule leave and an estimate of the frequency and duration of the episodes of incapacity.
(e) If an employee requests permission to bring an assistive animal into the workplace as a reasonable accommodation, prior to allowing the animal to be in the workplace, the employer may require that the employee supply:
(1) a letter from the employee's health care provider stating that the employee has a disability and explaining why the employee requires the presence of the assistive animal in the workplace (e.g., why the animal is necessary as an accommodation to allow the employee to perform the essential functions of the job); and
(2) confirmation that the animal meets the standards set forth in section 11065(a)(2). Such confirmation may include information provided by the individual with a disability. The employer may challenge that the animal meets that standards set forth in section 11065(a)(2) within the first two weeks the assistive animal is in the work place based on objective evidence of offensive or disruptive behavior. An employer may require an annual recertification from the employee of the continued need for the animal.
(f) For reasonable accommodations extending beyond one year, employers may ask for medical documents substantiating the need for continued reasonable accommodations on a yearly basis.
(g) Maintenance and Confidentiality of Medical Files. Medical information and/or records obtained during the interactive process shall be maintained on separate forms, and in medical files separate from the employee's personnel file, and shall be kept confidential, except that:
(1) supervisors and managers may be informed of restriction(s) on the work or duties of employees with disabilities and necessary reasonable accommodations; and
(2) first aid and safety personnel may be informed, where appropriate, that the condition may require emergency treatment; and
(3) government officials investigating compliance with this subchapter shall be provided relevant information on request.
Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1 and 12940, Government Code.govt.westlaw.com/calregs/Document/ICAC8D00E2C14486A8744DE656E129E0D?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)&bhcp=1
Image of David Geffen at the Abilities Expo in 2008