Does an employer's duty to accommodate employee disabilities extend to requiring an employer to transition to a paperless office in order to allow an employee with a severe anxiety disorder to work from home?

§ 12112. Discrimination

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

(b) Construction

As used in subsection (a), the term "discriminate against a qualified individual on the basis of disability" includes-

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(5)

(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

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(8) Qualified individual

The term "qualified individual" means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

(9) Reasonable accommodation

The term "reasonable accommodation" may include-

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

(10) Undue hardship

(A) In general

The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered

In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include-

(i) the nature and cost of the accommodation needed under this chapter;

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employee's essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations.

(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employee's medical condition, is unable to perform the employee's essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employee's medical condition, is unable to perform the employee's essential duties, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations.

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(m)

(1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.

(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.

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(d) "Employer" includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:

"Employer" does not include a religious association or corporation not organized for private profit.

(j) "Mental disability" includes, but is not limited to, all of the following:

(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:

(A) "Limits" shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.

(C) "Major life activities" shall be broadly construed and shall include physical, mental, and social activities and working.

(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.

(3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.

(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.

(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).

"Mental disability" does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.

(u) "Undue hardship" means an action requiring significant difficulty or expense, when considered in light of the following factors:

(1) The nature and cost of the accommodation needed.

(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.

(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.

(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.

(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.

(11) In the fourth cause of action, Scotch alleged AIC breached its duty to provide him a reasonable accommodation in violation of section 12940, subdivision (m). The elements of a failure to accommodate claim are (1) the

[173 Cal.App.4th 1010]

plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Wilson v. County of Orange, supra, 169 Cal.App.4th at p. 1192.)

(12) The term "reasonable accommodation" is defined in the FEHA regulations only by means of example: "`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." (§ 12926, subd. (n); see Cal. Code Regs., tit. 2, § 7293.9, subd. (a); accord, 42 U.S.C. § 12111(9).)

(13) In Nadaf-Rahrov, supra, 166 Cal.App.4th at pages 975-976, the court, adopting the definition found in the federal Equal Employment Opportunity Commission (EEOC) interpretive guidance on the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA), interpreted "reasonable accommodation" to mean "a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired." We agree with this definition. (14) As the Nadaf-Rahrov court reasoned, "[b]ecause the California Legislature has modeled the reasonable accommodation requirements of section 12940 [,subdivision] (m) and section 12940[, subdivision ](n) on the parallel federal requirements, the EEOC's definition of `reasonable accommodation' appropriately guides our construction of the state laws." (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 975.)

Second, Hanson cannot be heard to complain that Lucky did not provide these measures because Lucky made two other reasonable and effective accommodations available to Hanson. The employer is not obligated to choose the best accommodation or the accommodation the employee seeks. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370, 58 Cal.Rptr.2d 747.) Rather, "The Appendix to the ADA regulations explains that 'the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.' [Citation.] As the Supreme Court has held in analogous circumstances, an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided. [Citation.]" (Hankins v. The Gap, Inc. (6th Cir.1996) 84 F.3d 797, 800-801, quoting from Ansonia Board of Education v. Philbrook

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(1986) 479 U.S. 60, 68-69, 107 S.Ct. 367, 93 L.Ed.2d 305.) ¹¹

In this case, there was considerable testimony about what the essential functions of the Brand Manager position were from three Allied employees who at one time held the position. These employees testified that the Brand Manager position was mainly an administrative job. Based on this testimony, a reasonable jury could have concluded that the essential functions of the position were administrative and clerical tasks such as doing paperwork, working on the computer, and talking on the telephone. From the testimony of these three employees, a reasonable jury also could have concluded that the employees who actually held the Brand Manager position did not devote significant time to selling in the field and that selling in the field was therefore not an essential function of the Brand Manager position. See Facts ¶¶ 38-40.

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The jury reasonably could have concluded from the evidence that the main way in which Norris's medical problems limited her ability to do her job was that her back injury prevented her from driving for long periods of time and lifting heavy objects. The jury also could have concluded, reasonably, that Norris's array of medical problems — back pain, chronic fatigue syndrome, neck pain, irritable bowel disease, urinary incontinence, and stress — would have made it difficult for her to put in full days of work or to adhere strictly to a regular work schedule. See Facts ¶¶ 3, 43.

Based on testimony by Norris and her physician, Dr. Tan, a jury could have reasonably found that Norris could have been reasonably accommodated by being permitted to work from home (part-time, if necessary),

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where she could have performed the administrative duties of the Brand Manager job on the computer and over the telephone. See Facts ¶¶ 43, 44. Under the ADA, reasonable accommodation may include "job restructuring, part-time, or modified work schedules." 42 U.S.C.A. § 12111(9)(B); see also Pattison v. Meijer, Inc., 897 F.Supp. 1002, 1007-08 (W.D.Mich.1995). Allowing an employee to work at home may also be a reasonable accommodation. See Langon v. Department of Health & Human Services, 959 F.2d 1053, 1060-61 (D.C.Cir.1992).

The first alternative offered by defendant—working at its Roseville office with permission to lie down in the conference room as needed—does not "enabl[e plaintiff] to perform the duties of [her] position" because it does not address plaintiff's alleged inability to commute to Roseville. (See FAC ¶¶ 29, 36 (noting that hour-long commute to Roseville was "exacerbate[ing]" back condition).) Defendant argues that the ADA does not require employers to accommodate employees' commutes because commutes are not considered part of their job duties. (See Def.'s Mot. at 10-11.) The Ninth Circuit has held, however, that an employer has an obligation "to accommodate an employee's 1094*1094 limitations in getting to and from work" under the ADA.^[2] Livingston v. Fred Meyer Stores, Inc., 388 Fed.Appx. 738, 740 (9th Cir. 2010); see also Humphrey, 239 F.3d at 1135 (holding that employer had obligation to accommodate employee's inability to get to work on time or at all due to obsessive compulsive disorder). In light of this holding and in light of plaintiff's alleged inability to commute to the Roseville office, defendant's offer to have plaintiff continue working at the Roseville office does not constitute a reasonable accommodation. See Humphrey, 239 F.3d at 1137.

Defendant's second alternative, however, has been recognized by the Ninth Circuit to be "reasonable." In Humphrey, the Ninth Circuit held that a "leave of absence for medical treatment may be a reasonable accommodation under the ADA" where it would "permit [an employee], upon [her] return, to perform the essential functions of [her] job." Humphrey, 239 F.3d at 1135-36. Leave need not be paid to be reasonable under the ADA. Nunes, 164 F.3d at 1247 ("Unpaid medical leave may be a reasonable accommodation under the ADA."); Dark v. Curry Cty., 451 F.3d 1078, 1090 (9th Cir. 2006) (same).

Unlike the ADA, however, FEHA does not provide employers complete autonomy in choosing which reasonable accommodation, when there are more than one, to offer an employee. Section 11068(c) of title 2 of the California Code of Regulations ("section 11068(c)"), which implements FEHA's "reasonable accommodation" provision, states: "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." Cal. Code Regs. tit. 2, § 11068(c); see also Wallace v. Cty. of Stanislaus, 245 Cal. App.4th 109, 134, 199 Cal.Rptr.3d 462 (5th Dist. 2016) (applying section 11068(c) in FEHA case). Pursuant to this regulation, an employer's decision to place an employee on leave when she is able to work with another reasonable accommodation "cannot be described as a lawful accommodation of a physical disability." Wallace, 245 Cal.App.4th at 134, 199 Cal.Rptr.3d 462.

Based on the facts alleged in plaintiff's Complaint, either accommodation proposed by plaintiff—work from home or work at Folsom—appears to be "reasonable": plaintiff alleges that when at home, she is able to work on her bed, "propped up with pillows, and conduct business with a laptop" without "miss[ing] a beat," and if allowed to work at Folsom, she would be able to perform her job as usual so long as she could lie down in the conference room when she needs to. (See FAC ¶¶ 27, 37, 42.) Neither accommodation would appear to pose an undue burden to defendant, as plaintiff's position appears to involve work that is primarily done on a "virtual basis," via "Skype, e-mail and collaborative software," (id. ¶ 16; see also id. ¶ 25 (noting that plaintiff's manager "works from his home[,] near Chicago")), and thus not dependent on where she works. Moreover, defendant has allegedly allowed Plaintiff to work from home on and off since 2011. (Id. ¶ 14).

*1097 The court concludes that plaintiff has plausibly alleged that either of the accommodations she requested would constitute a "reasonable accommodation" under FEHA. Because defendant denied her both accommodations and left her with only one other "reasonable" alternative—going on medical leave—it has, under the facts alleged, failed to comply with section 11068(c). This failure is sufficient for the court to deny defendant's Motion to dismiss plaintiff's third cause of action to the extent it is brought under FEHA.^[4] It is also sufficient for the court to deny defendant's Motion to dismiss plaintiff's first cause of action to the extent it is brought under FEHA, as failure to comply with section 11068(c) constitutes "adverse employment action" when it leads to loss of income. See Wallace, 245 Cal.App.4th at 134-37, 199 Cal.Rptr.3d 462 (granting judgment for plaintiff on FEHA disability discrimination claim where adverse action alleged was placement on unpaid disability leave in violation of section 11068(c)).

After escrow closed, on her first day back to work, on August 22, she asked her supervisor to be relocated (with the same job) to an SCE office closer to her new home (either SCE's Wildomar or Menifee office). This time she based her request on the fact that she suffered panic attacks when driving on the freeway during her new commute. She gave her supervisor an August 11, 2016 letter from her doctor, stating he has been treating Martinez for the past two months for "anxiety disorder" and he recommends she "avoid situations that may aggravate her anxiety symptoms or panic attacks." He

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said that Martinez "reports that driving a vehicle for long distances, especially on the freeways, causes her to have increased anxiety and possibly result in panic attacks," and therefore he "recommend[s] that her job be located close to her home . . . ."

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After a full consideration of Martinez's request, her supervisors denied the request because they found Martinez could not complete or perform her core work if she was to relocate to another location. This determination was

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based on two considerations. First, the supervisors determined that at least 75 percent of her tasks required Martinez to work at the San Bernardino facility with physical files that occupy close to 200 filing cabinet drawers. Second, the supervisors found Martinez's duties required she have "continuous collaboration with and instruction from" two other analysts who worked with Martinez in the San Bernardino facility. The supervisors concluded that Martinez's "physical presence" at the San Bernardino facility was "fundamental" to her job.

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The jury found Martinez did not prove SCE failed to reasonably accommodate her disability, and thus Martinez could not recover on her FEHA failure-to-accommodate claim. Martinez argues this finding is unsupported because it is undisputed SCE did not grant her relocation request from August 2016 until February 2018. In asserting this argument, Martinez improperly disregards SCE's evidence and misconstrues an employer's obligation when a requested job accommodation precludes the employee from performing the essential duties of the position.

SCE presented evidence that Martinez's relocation would have precluded her from performing her essential job duties. Martinez's direct supervisor testified Martinez's work required that she remain in the same location as others who worked for the vegetation management team, and therefore her physical presence was needed for her to perform the essential functions of her job.²

The supervisor based this decision on facts showing (1) Martinez's work requires she have access to voluminous physical files (that were not available in electronic form) at the vegetation management resource center at SCE's San Bernardino office (and later at the Redlands office); and (2) the importance of working alongside two other team members who also needed access to the same files and with whom Martinez was expected to work, including to cover their overflow work. We infer from the verdict that the jury found this evidence credible, and rejected Martinez's contrary evidence.

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In challenging the jury's finding, Martinez discusses her own testimony that she did not believe she needed to be physically present at the San Bernardino office. However, as an appellate court, we cannot reweigh the evidence or reevaluate the credibility of the witnesses. (Collins, supra, 60 Cal.App.5th at p. 1048.) Similarly, Martinez's reliance on SCE employee Campbell's conclusions that a majority of Martinez's work could be performed remotely does not defeat the jury's factual findings. There is evidence in the record showing Campbell conducted only a superficial review of Martinez's duties, was focused mainly on a temporary relocation, and was acting as an advocate for Martinez. On this record, the jury had a sound basis to credit the testimony of Martinez's supervisors, rather than Campbell's conclusions on this issue.

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Martinez alternatively argues the jury was compelled as a matter of law to find in her favor on the reasonable accommodations question based on her request that she be permitted to work from home "on an as-needed basis." However, the jury had a reasonable basis to find SCE was not required to approve this request because—as discussed above—the evidence showed Martinez could not perform her essential job duties away from the San Bernardino office (and later Redlands office). Additionally, the record does not support that Martinez made this general request, or that Martinez's counsel argued this theory to the jury. This evidence shows at most Martinez asked to work away from the office a few times, but it does not show that Martinez ever made a general request to work away from the office on an "as-needed" basis because of her disability.

Third, White contends EDD denied her a reasonable accommodation by not allowing her to telecommute. But White acknowledges that her position did not allow for telecommuting under EDD policy, and never attempts to rebut EDD's offered evidence that her job duties were ill suited for telecommuting. EDD explained that White's position involved handling confidential records about EDD personnel, and it would not be reasonable for her to shuttle this confidential information to and from the workplace and her home. Rather than address this evidence, however, White claims that EDD should have allowed telecommuting anyway because it would not have caused EDD to suffer any undue hardship. But although an employer need not provide a reasonable accommodation when doing so would impose an "undue hardship" (Gov. Code, § 12940, subd. (m)), it can always deny unreasonable accommodation requests. White also claims the trial court should have left it to a jury to determine whether telecommuting was a reasonable option under the reasoning of Norris v. Allied-Sysco Food Services, Inc. (N.D. Cal. 1996) 948 F.Supp. 1418, affd. sub nom. Norris v. Sysco Corp. (9th Cir. 1999) 191 F.3d 1043. But that case is easily distinguishable. The employer there simply ignored the employee's request to telecommute (id. at p. 1425), and the evidence presented showed the employee reasonably could have performed certain administrative duties at home (id. at pp. 1431-1432). EDD, in contrast, promptly responded to White's inquiries about telecommuting, and explained her handling of confidential personnel records made the request impractical. White never effectively countered this factual showing to explain why telecommuting would nonetheless be reasonable. She instead offers only a single sentence that she was, at some point in her career, allowed to work from home "at times." But that showing, without more, did not overcome EDD's offered evidence and raise a triable issue of material fact.

Here, the undisputed evidence was that Andrade requested that she be allowed to work from home for two to four hours per week depending on her health and ability to work. The City agreed that Andrade could transcribe the minutes of the planning commission at home. The City subsequently agreed that she could transcribe the library advisory commission and bicycle and pedestrian advisory commission minutes at home. Andrade testified that transcribing the planning commission minutes could take from 45 minutes to four days depending on the length of the meeting. Thus, the City offered a reasonable accommodation for Andrade's disability.

Andrade argues that it is undisputed that the City never provided her with the necessary network access, and thus she was unable to work from home. However, Andrade testified that she transcribes the library commission minutes from tapes brought

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to her by another employee. Andrade also testified that she transcribes the planning commission meetings after she accesses the videos of the meetings that are available on the City's public Web site. Thus, it is unnecessary for Andrade to access the City's secure internal server system in order to transcribe the minutes from home.