Terminating the Employment Relationship

Other issues may arise during an investigation of employee conduct that implicates privacy rights. An employer should first refer to agency policies and legal constraints before searching an employee or his/her property, requesting an employee to submit to a polygraph examination, directing an employee to submit to a medical or psychological examination, relying upon a criminal or arrest record, recording a conversation, electronically monitoring the workplace or engaging in other similarly intrusive measures.

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T ERMINATION FOR A D ISABILITY THAT C ANNOT BE A CCOMMODATED

Section 4

Under certain circumstances, an employer can terminate the employment relationship with an employee because of the employee’s disability. In order to get to the point of separating an employee because of his or her disability, an employer must first satisfy its obligation to engage in the interactive process and consider reasonable accommodations. This portion of the workbook focuses on the procedure for separating a disabled employee and briefly touches upon an employer’s interactive process and reasonable accommodation obligations when it learns that an employee has a disability. The interactive process is the subject of an entire Liebert Cassidy Whitmore workbook, “Disability Interactive Process,” which we urge you to consult if you are unsure regarding an employer’s interactive process obligations. In the event an employer cannot accommodate an employee’s disability, either because the employee cannot perform the essential functions of the position even with an accommodation or one of the defenses discussed below applies, the employer may initiate separation. Beware that there are several overlapping laws that apply. Therefore, an employer should not separate an employee because of a disability unless and until the employer has considered the overlapping laws and consulted with legal counsel. For example, as discussed below, an employer may be required to apply for a disability retirement for the employee. A. I NTERACTIVE P ROCESS AND R EASONABLE A CCOMMODATION California’s Fair Employment and Housing Act (“FEHA”) and the federal Americans with Disabilities Act (“ADA”) both require employers to engage in an interactive process with a disabled employee whose disability interferes with his or her ability to perform the essential functions of his or her job. The purpose of the interactive process is to bring the employer and employee together to discuss the employee’s limitations and potential reasonable accommodations (i.e., modifications to the work environment) that may be available to enable the employee to continue working. 74

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