Disability-Related Reasonable Accommodation[i]

It is an unlawful employment practice for an Arizona employer to discriminate against any individual with respect to the terms, conditions, or privileges of employment on the basis of any protected classification including disability or religion. Employers must provide a reasonable accommodation for any known physical or mental disability unless they can demonstrate that providing the accommodation would pose an undue hardship.[ii]

While the definition of disability is broad it is not without limits. Conditions considered “transitory” or minor (e.g., an impairment with an actual or expected duration of six months or less), or any impairment caused by current use of illegal drugs are not considered disabilities under the ACRA. However, employers should consider whether ADA/ADAAA provide greater protections.

Arizona, following federal law, defines disability as a physical or mental impairment that substantially limits one or more major life activities. Work is considered a major life activity. Disability protections include those with a record of impairment, those regarded as having a physical or mental impairment; and individuals known to have a relationship or association with an individual who is known to have a disability. When the disability and/or the need for accommodation is not obvious, employers may ask for documentation of the need for the reasonable accommodation, about the disability and functional limitations.[iii] The employer is entitled to know that the individual has a covered disability for which they need a reasonable accommodation.

In keeping with federal law under the ADA, employees are not required to use any specific language when requesting an accommodation and the request need not be in writing. After receiving a request for a reasonable accommodation, the employer is required to engage in an informal discussion with the employee to clarify the individual’s needs and identify an appropriate reasonable accommodation. The duty to provide a reasonable accommodation includes the following:

• Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
• Job restructuring.
• Part-time or modified work schedules
• Reassignment to a vacant position
• Acquisition or modification of equipment or devices.
• Appropriate adjustment or modification of examinations, training materials or policies
• Providing qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments.
• The provision of auxiliary aids and services or interpreters and other similar services and actions for individuals with disabilities.

An undue hardship is considered any action requiring significant difficulty or expense incurred by an employer when considered in light of the following factors:

• Nature and cost of the accommodation needed
• Overall financial resources of the facilities, number of persons employed and the effect on expenses and resources or the impact otherwise of the accommodation on operations, including the impact on the ability of others to perform their duties and the facilities ability to conduct business.
• Overall financial resources of the employer, size of the business (e.g., number of employees, number/type and location of other facilities)
• Type of operations and interrelatedness of operations/other facilities.

NOTE: Employers may not segregate or classify a disabled employee in any way that would deprive or tend to deprive them of employment opportunities or otherwise adversely affect their status as an employee.

Overall, an undue hardship is something more than a mere inconvenience associated with providing an accommodation. Employers relying on an undue hardship exception to deny a reasonable Employers may not segregate or classify a disabled employee in any way that would deprive or tend to deprive them of employment opportunities or otherwise adversely affect their status as an employee. accommodation must be able to show a reasoned analysis that takes into consideration the above-mentioned factors.

When analyzing essential functions of the position in question, consideration is given to the employer’s judgement when it comes to determining what functions of a job are essential. A written job description can be evidence of the essential job functions if it was in effect before the job was advertised or the individual was interviewed or presumably hired.

A newly decided PAGA case provides employers with additional guidance on how best to address PAGA actions post-Viking River. The recent district court case Johnson v. Lowe’s Home Centers[i]  provides employers with a clearer roadmap – and a bit of hope – for addressing PAGA claims. As discussed here, the United States Supreme Court decision in Viking River found the Federal Arbitration Act (FAA) preempts the rule of Iskanian such that it precludes division of a PAGA action into individual and non-individual claims through an agreement to arbitrate.

Support for the Supreme Court’s ruling in Viking River is found in the Johnson Court’s decision to compel the plaintiff’s individual PAGA claim to arbitration and dismiss the non-individual PAGA claims. Refusing to question the Supreme Court’s interpretation of California state law regarding issues of standing, the Johnson court followed what it believed was clear authority set forth in Viking River; that non-individual PAGA claims should be dismissed once the individual PAGA claim is compelled into arbitration.

While other federal courts may choose to interpret Viking River’s holding more narrowly, the Johnson case does lend weight where a court is faced with similar, but not necessarily identical, facts. Further guidance on the unanswered question of standing should be forthcoming as the California Supreme Court is set to rule on the issue in the pending case Adolph v. Uber Technologies, Inc.