In the case of Nadaf-Rahrov v. Neiman Marcus 166 Cal.App.4th at 952, a California Court of Appeal reversed the trial judge’s decision which had held that an employer “was not required to wait indefinitely for [the employee’s] medical condition to improve” so that she could perform an available job. Plaintiff in the Neimen Marcus case had allegedly told her employer that she was “prohibited from performing work of any kind.” Court of Appeal saw the case differently. According to the Court of Appeal the federal rule in asking employers to allow employees to show that they could perform the work in a vacant position with or without a reasonable accommodation. The court agreed that the position must exist and be vacant. The court concluded that the there was no evidence that the alleged statement that the employee could not perform any work was made at the time of her termination so there could have been jobs that she could have performed when terminated. Of course this ruling does not change the fact that employers still need not provide an accommodation to a disabled employee if that accommodation would cause the employer “undue hardship.” FEHA defines undue hardship as an action requiring significant difficulty or expense when the : cost and nature, the overall resources of the employer, type of employer’s operation, financial resources of employer are considered. However, it does make it clear that the employer must on an ongoing fashion monitor its situation to ensure that the “undue hardship” still exists. Orange County disability discrimination attorneys of Employment Law Team can evaluate the facts of each case and advise potential clients on whether there has been a violation of FEHA, FMLA or other statutes.