On November 30, 2012, the Office of Administrative Law approved the Fair Employment and Housing Commission’s (FEHC’s) new disability regulations. The new regulations state explicitly that the focus under California law is now whether employers “have provided reasonable accommodation to applicants and employees with disabilities, whether all parties have complied with their obligation to engage in the interactive process, and whether discrimination has occurred.” According to the FEHC, the focus is not on “whether the individual meets the definition of disability” because that “should not require extensive analysis.” These new regulations, which become effective on December 30, 2012 and impact all California employers with 5 or more employees, include the following highlights:
1. Expanded Definition of “Disability”
California law prohibits an employer from discriminating on the basis of an employee’s actual or perceived disability. A disability is a physical or mental impairment that limits a major life activity. The new regulations make clear that the definition of “disability” shall be given the broadest — that is, the most employee-friendly — meaning possible.
The new regulations also give numerous examples of specific mental and physical “impairments” that qualify. For example, a “mental disability” exists if an employee has an actual or perceived emotional or mental illness, intellectual or cognitive disability, organic brain syndrome, autism, special education or learning disabilities, schizophrenia, and/or chronic or episodic conditions (such as clinical depression, bipolar disorder, post- traumatic stress disorder, and/or obsessive compulsive disorder). A “physical disability” exists if an employee is or perceived to be deaf or blind, has or is perceived to have partially or completely missing limbs, uses of a wheelchair, has or is perceived to have cerebral palsy, and/or has or is perceived to have other chronic or episodic conditions (such as HIV/AIDS, epilepsy, hepatitis, diabetes, seizure disorder, multiple sclerosis, and/or heart disease). However, conditions that are mild and do not limit a major life activity are not considered “disabilities.” Examples include the common cold, flu, minor cuts, sprains, muscle aches, non-migraine headaches, and/or bruises.
The new regulations also make clear that the definition of “major life activities” must also be construed broadly. A “major life activity” includes mental, physical, and social activities, particularly those that affect one’s employability or that present major obstacles to employment advancement. Examples include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
2. Burden of Proof
The new regulations make clear that the employee need not prove that his/her disability was the sole or primary cause of the employer’s actions. Instead, the employee need only prove that the his/her disability was “one of the factors that influenced the employer.”
3. Reasonable Accommodations
Under California law, employers have an “affirmative duty” to make reasonable accommodations for the known disability of any employee or applicant, unless the employer can demonstrate, after engaging in the interactive process, that doing so would pose an undue hardship. The new regulations provide a long list of examples of “reasonable accommodations,” including such things as permitting an employee to work from home, “job restructuring,” and modifying “supervisory methods.” Employers must consider all possible accommodations except ones that create an undue hardship. Employers must also consider the preference of the employee or applicant; however, employers maintain the ultimate right to select and implement an alternate accommodation so long as it is effective.
4. The Interactive Process
California law currently imposes an obligation on employers to engage in a “timely, good faith interactive process” with a disabled employee in order to determine whether a “reasonable accommodation” might exist. The new regulations repeatedly emphasize the importance of engaging in the interactive process. They also make clear that this obligation is triggered not only when an employee requests an accommodation but also when an employer “otherwise becomes aware of the need for an accommodation through a third party or by observation.” Finally, the new regulations state that this obligation is triggered whenever an employee with a disability exhausts other available leave (such as Pregnancy Disability Leave or leave under the Family and Medical Leave Act) but is not yet medically able to return to work.
5. Assistive Animals
The new regulations require employers to allow “assistive animals” in the workplace as a reasonable accommodation. Animals that qualify as “assistive animals” include not only service dogs, but also other animals that provide “emotional or other support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.” Employers may require “minimum standards” for assistive animals which may include requirements that the animal be free from odor and have “habits appropriate to the work environment, for example, the elimination of urine and feces.” Employers may also require that the animal not engage in behavior that endangers the health or safety of employees and is trained to provide assistance for the employee’s disability.
6. The Role of the Employee’s Health Care Provider
The new regulations make clear that employers may require the employee or applicant to provide medical documentation that confirms the existence of an underlying disability and the need for an accommodation. If required, an employee or applicant must cooperate in good faith in this interactive process and provide reasonable medical documentation. However, employers are prohibited from inquiring about the underlying medical cause of the disability. The new regulations state that an employer may obtain only as much medical information as is necessary to establish the existence of a disability and the need for an accommodation. Employers may not, however, inquire about the underlying medical condition or the “nature of the disability.” The new regulations also state that an employer may not require an employee or applicant to be examined by a company-selected healthcare provider unless (i) the information provided by the employee’s healthcare provider is deficient, and (ii) the employee has been given a reasonable time to correct the deficiency.
7. Importance of Job Descriptions
Employers who engage in the interactive process may assert as a defense that no reasonable accommodation exists that would allow the employee to perform the essential functions of the position without imposing an “imminent and substantial degree of risk” to the employees or others. The new regulations state that an employer may rely on a job description as evidence of the essential functions of a job only if it is an “accurate, current written job description.” It is therefore critical that employers maintain accurate, up-to-date job descriptions for all positions. In the absence of a job description, the regulations state that an employer may rely on prior performance reviews to establish the essential functions of the job.
Employers should review the new regulations and update their employee handbooks, policies, job descriptions, and forms as necessary.
