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Thelen LLP
On
January 1, 2001, amendments to California's statute governing
the prohibition of disability discrimination expressly and
dramatically broadened the law. Through the amendments added
by Assembly Bill 2222, the California legislature expressly
stated that the California Fair Employment and Housing Act
(FEHA) is intended to provide more protection to employees
than the federal Americans with Disabilities Act. "More
protection," indeed.
FEHA's
disability discrimination prohibitions now are so broad
that arguably every employee and applicant may have a disability
- requiring employers to discuss possible accommodations
with virtually everyone seeking special treatment. The salient
statutory amendments are described below to assist employers
in navigating their way through the new requirements.
A.B. 2222 Broadly Expands the Definition of Disability
The
new FEHA protects individuals who: (1) have a physical
disability, which is defined as including a physiological
disease, disorder, condition, cosmetic disfigurement or
anatomical loss that (a) affects a body system and
(b) "limits" a major life activity; (2)
have a mental or psychological disorder or condition that
"limits" a major life activity; (3) have
a mental disorder or condition that requires special education
or related services; (4) have a record or history
of any of the above; (5) are regarded or treated
as having or having had a physical or mental condition that
makes achievement of a major life activity difficult; or
(6) are regarded or treated as having a physical
or mental condition that has no present disabling effect
but that may become a physical or mental disability.
Most
significantly, "limits" now is defined under FEHA
to mean "makes achievement of the major life activity
'difficult.' " California Government Code §§12926
(k), 12926.1 (c) [emphasis added]. Under the ADA and prior
interpretations of FEHA, a physical or mental condition
had to "substantially limit" a major life activity
to fall within the ambit of disability discrimination law.
In
addition, California law now expressly provides that limitations
are evaluated without considering mitigating measures such
as medication, assistive devices or prosthetics unless the
mitigating measure itself limits a major life activity.
This, too, is a dramatic shift in how the existence of a
disability is evaluated. The U.S. Supreme Court, in Sutton
v. United Air Lines, Inc., 527 U.S. 471, 475 (1999)
held that disabilities are evaluated under the ADA considering
the effect of such mitigating measures. Under FEHA's broadened
definitions, examples of potentially disabled employees
requiring accommodation under California law include:
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A
person returning to partial duty from any physical injury. |
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A
person who needs corrective lenses to see well. |
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A
person with a minor back injury, which the employer
treats as being in danger of aggravation. |
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A
person who cannot concentrate on her work due to depression. |
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A
person who cannot get along with his boss due to bipolar
disorder. |
The
California Legislature stated, however, that all of this
merely "clarified" existing law by amending its
definitions. To the extent that the amendments to FEHA do
not create new law, they may apply retroactively. See,
Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245 (2000).
The Interactive Process and Reasonable Accommodations
Clarified
What
is the Interactive Process? The interactive process
is a dialog between an employer and a disabled employee
to determine whether there is a reasonable accommodation
that would enable the employee or applicant to perform the
essential functions of the job. AB 2222 amended FEHA to
add a separate cause of action for failing to engage in
the interactive process in good faith.
What
triggers the Interactive Process? While an employee
may trigger an employer duty to engage in the interactive
process by directly asking for an accommodation, an employer
also must engage in the interactive process if it recognizes
the need for an accommodation. Therefore, ambiguous comments
actually may be requests for accommodation. For instance,
if an employee requests time off because she is "depressed"
and "stressed" or if an employer sees an employee
having a seizure, these are sufficient triggers to require
the employer to engage in the Interactive Process.
Steps for Engaging in the Interactive Process and Providing
an Accommodation
1.
Identify essential job functions. A.B. 2222 provides
stringent guidelines, describing an essential function as
one that is the reason the job exists, one only a limited
number of employees can perform or one that a specialized
person is hired to perform. California Government Code §12926
(f). Evidence a court will consider when determining the
essential functions of a job include (1) the employer's
judgment; (2) job descriptions prepared before advertising
or interviewing job applicants for the position; (3) amount
of time spent on the function; (4) consequences of performing
the function; (5) terms of any collective bargaining agreement;
and (6) work experience of past and current employees in
the same or similar jobs. California Government Code §12926
(f) (2) (A) to (G).
2.
Identify possible accommodations. A "reasonable
accommodation" may include making existing facilities
useable by or accessible to individuals with disabilities;
job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modification
of equipment or devices; modifications of examinations,
training materials or policies; or other steps. California
Government Code §12926. A recent California Court of
Appeal decision stated that when reassignment of an existing
employee is at issue, an employer must give preferential
consideration to that employee, and disabled employees should
not be forced to compete with non-disabled employees. Jensen
v. Wells Fargo Bank, 85 Cal.App.4th 245 (2000). Ominously,
the court in Jensen stated that an employer must do "everything
within its power to find a reasonable accommodation."
3.
Analyze the reasonableness of possible accommodations.
A particular accommodation is not required if it causes
undue hardship to the employer, comparing its nature and
cost against the size and solvency of the employer and the
type of operation. Nor is an accommodation required if the
employee would pose a direct threat to the safety of himself
or others with the accommodation. California Government
Code §§12926 (g), 12940 (m). 1/
4.
Implement the most appropriate accommodation without imposing
an undue hardship on the employer. An employer
must give primary consideration to an employee's expressed
choice of accommodation unless another effective accommodation
would provide a meaningful equal employment opportunity.
Barnett v. U.S. Air, 288 F.3d 1105 (9th Cir. 2000) (en banc).
Preventive Steps to Deal With the New Disability Discrimination
Laws
First,
conduct an audit of policies and job descriptions. Unless
the current job descriptions accurately reflect the essential
functions of each job, revise them. Drafting tips: (1) Identify
essential functions of each job and be sure to include each
such function in the description; (2) Do not distinguish
mental and physical requirements from essential functions;
(3) Include essential functions that pertain to mental disabilities,
such as ability to work with a team, ability to take direction
from supervisors, ability to keep required job schedule,
ability to focus attention on details and ability to follow
work rules.
Second,
conduct training. It is imperative to train management members
to recognize "plain English" requests for accommodation
and to seek assistance from human resources and/or counsel.
Also, consider training workers regarding their right to
seek an accommodation and procedures for requesting it.
Finally,
consult legal counsel, particularly when the interactive
process has come to an impasse. The 2001 amendments to FEHA
greatly expand the scope of disability law and employer
obligations to engage in the interactive process and to
accommodate disabled employees and applicants.
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For more information about the issues covered in this report, please contact Linda S. Husar in our Los Angeles office at 213-576-8017 or at lshusar@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
ENDNOTES
1/
However, the Ninth Circuit has interpreted the ADA
to require employers to accommodate employees without regard
to whether they pose a direct threat to themselves. Echazabel
v. Chevron USA, Inc., 226 F.3d 1063 (9th Cir. 2000).
©2001 Thelen LLP
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