A: Your employer may have a duty to offer you the vacant lower level positions to comply with its duty to provide reasonable accommodation. California law prohibits discrimination based on disability or medical condition. An employer may not refuse to hire, train, or promote an employee based on disability. An employer may not terminate an employee or discriminate against the employee in compensation or other conditions of employment based on the employee’s disability or medical condition.

     Employer’s Duty to Provide Reasonable Accommodation
     If a disabled employee is unable to perform his or her old duties, the employer must engage in a timely, good faith interactive process in response to the disabled employee’s request for reasonable accommodation. The employer must start the interactive process if the employee's disability becomes known or obvious.

     The employer knows an employee has a disability when the employee tells the employer about the condition, or when the employer becomes aware of the condition, such as through a third party or by observation. After knowing of the employee’s disability, the employer must provide a reasonable accommodation for the disabled employee.

     Depending on the employee’s specific restrictions and the employer’s circumstances, the following are some types of reasonable accommodations that an employer may provide:

         Making facilities accessible to and usable by disabled individuals;
         Job restructuring;
         Offering part-time or modified work schedules;
         Reassigning to a vacant position;
         Acquiring or modifying equipment or devices;
         Adjusting or modifying examinations, training materials or policies;
         Providing qualified readers or interpreters; and
         “Other similar accommodations for individuals with disabilities.”

     Sometimes allowing the employee a temporary leave of absence may be a reasonable accommodation if, after the leave, the employee likely can resume his or her duties. Additionally, if the employee can no longer perform the former job's duties, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee's former job.

     The employer has the duty to find and offer suitable jobs for the employee. Simply telling the disabled employee to check available job postings in the company is not enough. As in the situation above, the employer must reassign or transfer a disabled employee to a vacant position because the employer is in a better position to know what jobs are vacant or may become vacant. Additionally, the law entitles the disabled employee to “preferential consideration” in reassignment of existing employees. However, the employer is not required to promote or create a new position in order to accommodate a disabled employee.

     Employee’s Duty to Cooperate in Good Faith
     Throughout the interactive process, the employee has the responsibility to cooperate in good faith with the employer, including providing information that the employer may require to explore accommodations. Typically, the employee must be able to provide the employer with a list of restrictions that must be met to accommodate the employee. The employer may take the employee's demands into consideration in determining whether a suitable opening exists.

     Each employee’s situation in every workplace is different from another. The specifics of each claim must be discussed with an experienced employment attorney to protect the rights of disabled employees.

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