162 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com Thus, the Court of Appeal upheld a jury verdict against an employer for failing to engage in the interactive process, even though the jury also found that there had been no failure to provide a reasonable accommodation. Acknowledging that the federal ADA would provide no remedy for failing to consider accommodations when in fact no reasonable accommodation was available, the Court of Appeal emphasized that California is different: “FEHA allows an independent cause of action for employees whose employers fail to engage in the interactive process.”87 Reasonable accommodations. The California duty to accommodate can require employers, when aware that a disabled employee can no longer perform the regular job, to explore several options. First, employers must canvass vacant positions to see if there is one to offer to the employee.88 Second, employers must determine whether a leave of absence would be a reasonable accommodation. There is no specific time limit for how long a leave must be. Regulations state that employees must show that the leave likely would have been effective in allowing the employee to return to work at the end of the leave, with or without further accommodations.89 The FEHA’s reasonable-accommodation requirements may require an employer to provide leave for a pregnancydisabled employee for a period beyond the four-month maximum leave required under the PDLL.90 Going beyond federal law, the FEHA expressly prohibits retaliation against a person for requesting an accommodation, regardless of whether the request is granted.91 A Court of Appeal decision went out of its way to suggest that the FEHA might create a duty “to provide reasonable accommodations to an applicant or employee who is associated with a disabled person.”92 The decision drew a strong dissent, pointing out that the majority opinion was substantially departing from federal law on the issue of reasonable accommodations in the context of associational disability. Federal courts hold that the ADA does not obligate employers to accommodate employees associated with a disabled person.93 California’s disability discrimination regulations specify certain possible reasonable accommodations, such as telecommuting, reserving parking spaces, and acquiring or modifying furniture.94 Employers may also need to allow “assistive animals” in the workplace as a reasonable accommodation for disabled individuals with visual or hearing impairments.95 An assistive animal may also constitute a reasonable accommodation to provide emotional, cognitive, or other similar support to a person with a disability.96 California regulations do acknowledge, however, that the duty to accommodate does not require an employer to make a light-duty position permanent or to lower the employer’s quality standards.97 Under federal law, compensatory and punitive damages are not awarded for failures to provide reasonable accommodations when employers demonstrate they acted in good faith, in consultation with the disabled individual seeking an accommodation, to identify and offer a reasonable accommodation that would provide an equally effective opportunity and not cause an undue hardship for the business.98 The FEHA seems to have no such savings provision for employers that have acted in good faith. Highlighting the significance of this difference, the Court of Appeal has held that a reasonable-accommodation plaintiff, seeking damages for lost wages and emotional distress, need not prove an employer was motivated by ill will or animosity.99 The plaintiff was a deputy sheriff who, after taking a leave for his injured knee, was denied full reinstatement for many months because the employer mistakenly thought he could not safely perform his essential job functions. In his lawsuit for damages resulting from the delay in reinstatement, the trial court instructed the jury that he needed to prove that the employer had discriminated against him, and the jury ruled against him for failing to make that proof. The Court of Appeal reversed, holding that the plaintiff deserved a retrial because the jury instruction was erroneous. The Court of Appeal explained that the traditional notions of proving discrimination do not apply in
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