After fifteen years of far-reaching changes in federal and California workplace disability discrimination statutes and case law, California’s Fair Employment and Housing Commission – now folded into the Department of Fair Employment and Housing (“DFEH”) – adopted revised and new regulations reflecting those changes which became effective December 30, 2012. The updated regulations touch all areas of disability law, including definitions, reasonable accommodation, the interactive process, and job applicants.
The new regulations open with a warning to every employer of California employees:
. . . . These regulations are to be broadly construed to protect applicants and employees from discrimination due to an actual or perceived physical or mental disability or medical condition that is disabling, potentially disabling or perceived to be disabling or potentially disabling.
Definitions. Not surprisingly, the regulations state that “[t]he definition of ‘disability’ in these regulations shall be construed broadly in favor of expansive coverage by the maximum extent permitted by the terms of the Fair Employment and Housing Act (‘FEHA’).” And, “the primary focus in cases brought under the FEHA should be whether employers and other covered entities have provided reasonable accommodation to applicants and employees with disabilities, whether all parties have complied with their obligations to engage in the interactive process and whether discrimination has occurred, not whether the individual meets the definition of disability, which should not require extensive analysis.”
While the new regulations broaden the meaning of “disability,” they expressly exclude from that definition common notions of vices and minor, temporary conditions. Thus, disability does not include “compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders from the current unlawful use of controlled substances or other drugs, and ‘sexual behavior disorders . . . .’” And, the disability definition doesn’t include mild conditions: “those having little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle ache, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.”
With regard to disabled employees needing reasonable accommodation in the form of an animal, the updated California regulations expand the notion of “service animal” beyond the federal one. Under the federal regulations, a “service animal” is limited to a trained dog or miniature horse. California’s regulations use the term “assistive animal” instead, and it means “a trained animal, including a trained dog, necessary as a reasonable accommodation” for disabled person. The only stated limitations on an assistive animal are that it “is free from offensive odors,” “displays habits appropriate to the work environment, for example the elimination of urine and feces,” doesn’t behave in a manner that “endangers the health or safety” of the disabled person or others, and is trained “to provide assistance for the employee’s disability.” Thus, in California, any trained animal might qualify as an assistive animal, as long as the other requirements are met.
What does this expansive “assistive animal” mean for employers of California employees? Be prepared for accommodation requests beyond service dogs and horses. Stories abound of service birds, lizards, monkeys and other creatures. And, if an employer permits “other creatures” as reasonable accommodations for its California disabled employees, will it impact similar accommodations requests in other states under the ADAAA or other states’ laws?
Reasonable Accommodation. The employer has a duty to provide “reasonable accommodation” of an employee’s disability if known by the employer, unless, after engaging in the interactive process, the employer can prove that the accommodation “would impose an undue hardship” upon the employer. The employer must consider, but does not have to provide, the employee’s preferred accommodation; rather, the employer “has the right to implement an accommodation that is effective in allowing the applicant or employee [to] perform the essential functions of the job” And, for reasonable accommodations “extending beyond one year, the employer may ask for medical documents substantiating the need for continued reasonable accommodations on a yearly basis.”
The regulations now add a preference section: A disabled employee may receive “preferential consideration of reassignment to a vacant position over other applicants and existing employees,” unless such preferential treatment conflicts with a “bona fide seniority system.” However, whether a seniority system is bona fide will depend on a few factors, such as whether the employer reserved the right to modify the seniority system or has a “practice” of permitting variations.
The new preference section, above, may be a trap for the unwary employer. The employer must review its seniority system, if any, to determine whether it qualifies as a “bona fide” system or allows for variance. If the latter, then a disabled California employee might be entitled to preferential reassignment to a vacant California position over non-disabled employees or applicants. An interesting question for non-California employers: What if the only vacant position is in another state, and the disabled employer is willing and able to move there? Assuming no bona fide seniority system, must that employer offer that non-California position to the disabled non-California employee?
Interactive Process. The new regulations detail the type of notice that triggers employer’s obligation to start the interactive process: (1) the employee, with a known disability, requests reasonable accommodation; (2) the employer becomes aware of the accommodation need from “a third party or by observation,” or; (3) the employer becomes aware of the accommodation need “because the employee . . . has exhausted Workers Comp leave, “for the employee’s own serious health condition under the CFRA and/or the FMLA . . . or other . . . leave provisions” and yet the employee or his/her healthcare provider indicates that further accommodation is needed for “recuperative leave or other accommodation for the employee to perform the essential functions of the job.” Must an employer initiate the interactive process while an employee is on leave for a disability? Under the new regulations, the answer might be “yes” if the employee falls within the third type of notice mentioned above.
The regulations spell out the medical documentation limits now imposed upon employers, including the provision that when the disability or accommodation need isn’t obvious, and the employee has not provided the employer with confirming medical documents, then the employer “may require the . . . employee to provide such . . . documentation.”
Job Applicants. The new regulations include a section devoted entirely to job applicants, with a focus on the application and interview processes.
Thus, an employer cannot advertise or publicize an “employment benefit” in a manner that “discourages or is designed to discourage” disabled applicants from applying more than non-disabled applicants. This section contains some obvious vagueness. What is an “employment benefit”? The term is not defined. Certainly, it would include a job opening. But, what other “employment benefits” might be available to a job applicant? And, for non-California employers trying to recruit California employees, does their national and/or Internet- based recruitment campaign, which might otherwise pass muster in 49 states, now have to be modified to comply with California’s recruitment ad restrictions?
As for the interview process, the regulations reiterate the current prohibition against “general questions on disability or questions likely to elicit information about a disability.” However, employers are permitted to “make limited inquiries regarding . . . reasonable accommodation” if the applicant requests reasonable accommodation or if the applicant has an obvious disability and the employer reasonably believes she will need such accommodation.
Implications for Non-California Employers. California’s proemployee laws have, for decades, been a stumbling block for many California and, particularly, non-California employers. The new California disability discrimination regulations are comprehensive, consolidating and updating the myriad California cases and statutes into one body of regulatory pronouncements. However, the regulations have the force of law and, thus, reach beyond California’s borders to all employers of California employees. Bottom line: A workplace disability policy or practice that is legal in another state or under federal law may be illegal in California.