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Expansion of California's Disability Discrimination Laws
White Paper prepared for client, February 2001
by Renée D. Wasserman and Connie M. Teevan

On September 30, 2000, Governor Gray Davis signed Assembly Bill 2222, legislation that significantly expands protection for disabled workers in California beyond the protections currently afforded by the federal Americans with Disabilities Act of 1990 ("ADA") [42 U.S.C. 12101 et seq.]. The new law modifies sections of the Fair Employment and Housing Act ("FEHA"), [Gov't Code 12940 et seq.], which is the California statute that prohibits discrimination in employment. AB 2222 went into effect on January 1, 2001.

As you are aware, employers cannot discriminate against qualified job applicants or employees who are, have been, or become disabled. Both the federal ADA and the California FEHA prohibit discrimination in the workplace based on disability. In the past, California employers have been able to rely on ADA case law, as well as the accompanying U.S. Equal Employment Opportunity Commission ("EEOC") regulations, to interpret FEHA disability discrimination claims. Because the new law provides California employees with protections independent of, and in addition to, those of the federal ADA, employers will not always be able to apply federal precedent to the FEHA.

AB 2222 has expanded protections for disabled employees in the following three ways: (1) it provides broader definitions of what constitutes a physical and/or mental disability or medical condition; (2) it imposes a requirement on employers to engage in "a timely, good faith, interactive process" to determine reasonable accommodations for their disabled employees; and (3) it prohibits disability-related inquiries or examinations by employers, except under certain circumstances. Each of these changes, and their effect on California employers, is discussed below.

1.     The Broader Definitions of Disability Under The FEHA

Under the ADA, a disability is a physical or mental impairment that substantially limits one or more of the major life activities of an individual. 42 U.S.C. 12102(2)(A) (emphasis added). Prior to the passage of AB 2222, most California court decisions assumed that the FEHA also required that an impairment substantially limit a major life activity, even though the language "substantially limit" was absent from the statute. See e.g., Cassista v. Community Foods Inc., 5 Cal.4th 1050 (1993), Hobson v. Raychem, 73 Cal.App.4th 614 (1999). The FEHA amendments in AB 2222 make it clear, however, that a different standard applies in California to determine whether an employee is disabled and therefore entitled to the protections of the disability discrimination laws.

Under AB 2222, the definitions of "mental disability" and "physical disability" under the FEHA require merely that the disability "limit" a major life activity -- not "substantially limit," as required by the ADA. As a result, more mental and physical impairments will qualify as disabilities under California law than under the federal law, since the "substantial" standard has been rejected. AB 2222 also lowers the California disability standard by covering disabilities that make the achievement of a major life activity difficult, rather than the standard previously set by the California Supreme Court that the disability had the disabling effect of making achievement unusually difficult.1

As a result of these explicit definitions of disabilities, a broader range of disabilities will be protected in California under the FEHA. In the past, under ADA case law, the courts evaluated impairments based on their severity and duration. Given the expanded California definitions, the courts will now consider impairments that are less severe and of a more limited duration to qualify as disabilities in California. Under this lower standard, a broken arm, a strained back, or significant stress could all qualify as protected disabilities in California. Furthermore, in the absence of prior case law or ADA precedent, employers will have more difficulty determining what types of mental or physical conditions qualify as disabilities.

While expanding the definitions of disability, the new law also rejects recent U.S. Supreme Court law, which requires disability decisions under the ADA to take into account mitigating measures. Under the new California law, whether or not an impairment limits a major life activity must be considered without regard to "mitigation measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity." Therefore, in California, employees will be considered disabled and entitled to protection under the FEHA, even if their impairments have been remedied by medicine, eye glasses, or their work environment. This will broadly expand the FEHA protection to employees who have corrected, or are correcting, their disabilities.2

2.     Statutory Requirement To Engage in Timely, Good Faith, Interactive Process

Prior to the passage of AB 2222, employers were required under the FEHA to make a reasonable accommodation for the known physical or mental disability of an applicant or employee, unless that accommodation produced undue hardship to the employer's operation. AB 2222 adds an additional statutory obligation for employers - - namely, to engage in a timely, good faith, interactive process with employees to determine effective reasonable accommodations, if any, when an applicant or employee with a known physical or mental disability or medical condition requests one. What does this mean to employers?

It is now an unlawful employment practice for a California employer to fail to engage in this interactive process. Once the employer has notice that an employee is claiming a disability (even before a disability determination has been made), the employer must engage in a dialogue in a timely manner with the employee to determine what kind of a reasonable accommodation can be made. As evidence of compliance with the law, the employer should document this "interactive process" in writing.

3.     Disability-Related Employment Questions and Medical Examinations

AB 2222 also adds new language to the FEHA regarding when employers may ask job applicants or current employees disability-related questions or require medical or psychological examinations. Although this statutory language is new to the FEHA, it reflects the guidance currently offered by the U.S. Equal Employment Opportunity Commission on the ADA. This EEOC guidance has now become a statutory requirement under the FEHA. In addition, the new FEHA requirements are more stringent when it comes to post-offer, pre-employment examinations.

Whether an employer can ask disability-related questions or require medical examinations depends on whether the applicant has been given a conditional job offer or is employed. Once that threshold showing has been met, the employer must next consider the reason for the disability-related question or examination. To help you determine when you can ask such questions, please refer to the chart below:

  • Job Applicants Pre-Offer (before a job offer has been made)
    • Employers may not do the following:
      • Demand that the applicant take a medical or psychological examination
      • Ask if the applicant has a mental or physical disability or medical condition
      • Ask about the nature or severity of a physical disability, mental disability, or medical condition
    • But employers may do the following:
      • Inquire into the ability of the applicant to perform job-related functions
      • Respond to an applicant's request for a reasonable accommodation
  • Job Applicants Post-Offer (after a job offer has been made but prior to the commencement of employment duties)
    • Employers may require applicants to take a medical or psychological examination or make a medical or psychological inquiry but only if:
      • the examination or inquiry is job-related and consistent with business necessity; and
      • all entering employees in the same job classification are subject to the same examination or inquiry.

Note that the ADA does not require that the examination be job related and consistent with business necessity. Nor does the ADA require that the same examination be given to all employees in the same job classification.

  • Current Employees
    • Employers may require a medical or psychological examination or make a medical or psychological inquiry only if:
      • the examination or inquiry is job-related; and
      • the examination or inquiry is consistent with business necessity.
      • Employers may also conduct voluntary medical examinations (including voluntary medical histories) which are part of an employee health program available to employees at that worksite.
See Gov't Code 12940(e)(1).

4.     Conclusion

As a result of AB 2222, California employers need to be aware of the broader coverage granted by California law to employees who claim to be disabled. In addition, employers must be aware of their legal obligation to engage in a timely, good faith, interactive process, once they are given notice of an employee's claimed disability. Since employers will likely have more difficulty determining exactly which impairments are covered by the FEHA and will also likely see more disability claims, we recommend that employers engage in a dialogue with their employees and attempt to reach an acceptable accommodation, where reasonable, as a first line of defense.

Also, if you are currently using post-offer, pre-employment medical examinations that comply with the ADA, we recommend that you revisit the examinations to determine whether they comply with the FEHA's more stringent requirements. If you are using the same examination for all jobs within your company, it will likely need to be revised to tailor it to the specific needs of each job classification.

 

Footnotes

  1. AB 2222 also amends the definition of "medical condition" to include any health impairment related to or associated with a diagnosis of cancer for which a person has been rehabilitated or cured. It deletes the language which required the rehabilitation or cure to be based on "competent medical evidence." Back

  2. The law specifically excludes certain types of disabilites, including sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. Therefore, if your employee is suffering from one of these disorders, he or she is not protected under the FEHA. Back


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