New disability regulations (pdf) took effect this year for California employers with five or more employees. They include the following:
- Examples, examples, and more examples. These examples are illustrative – not exclusive.
o Examples of physical disabilities, namely “deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, cerebral palsy, and chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis and heart disease.”
o Examples of mental disabilities include “emotional or mental illness, intellectual or cognitive disability (formerly referred to as ‘mental retardation’), organic brain syndrome, or specific learning disabilities, autism spectrum disorders, schizophrenia, and chronic or episodic conditions such as clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder.” Also included are specific learning disabilities “manifested by significant difficulties in the acquisition and use of listening, speaking, reading, writing, reasoning or mathematical abilities.”
o Examples of the types of temporary impairments that do not merit protection, namely “the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and nonchronic gastrointestinal disorders.”
o Examples of reasonable accommodations include:
§ “[P]roviding accessible break rooms, restrooms, training rooms, or reserved parking places; acquiring or modifying furniture, equipment or devices; or making other similar adjustments;”
§ Allowing use of assistive animals (more on this below);
§ “Transferring an employee to a more accessible worksite;”
§ “Providing assistive aids and services such as qualified readers or interpreters to an applicant or employee;”
§ Job Restructuring (although the employer is not required to reassign essential job functions);
§ Part-time or modified work schedules;
§ Changing “when and/or how an essential function is performed;”
§ Adjusting or modifying “examinations, training materials or policies;”
§ Modifying policies or supervisory methods;
§ Providing additional training;
§ Letting the employee work from home;
§ Leaves of absence (although indefinite leaves are not required); and
§ Reassignment to a vacant position (although there is no need to create a position or disregard an established, bona fide seniority system).
- Renewed emphasis on employees’ rights to use “assistive animals.” We’re not just talking about guide dogs. One case that our friend Christina Stoneburner at the Employment Discrimination Report wrote about involved a miniature horse that helped pull a wheelchair. Also, the requirement extends to animals that provide “emotional or other support” to people with emotional problems or brain damage. So it won’t necessarily be clear at first glance whether the animal performs a support function.
Employers are entitled to set standards for service animals, such as:
o Requiring that the animal behave appropriately in the workplace, not smell offensive, and not befoul the workplace with urine and feces.
o Prohibiting the use of animals that endanger any employee’s health or safety.
o Requiring the animal be trained to provide assistance.
o Requiring employees to get certification from their health care provider that they need the animal as an accommodation.
- Increased emphasis on the obligation to engage employees in a “timely, good faith interactive process” to explore possible accommodations. This obligation arises not just when an employee requests accommodation, but also when:
o The employer becomes aware of the need for accommodation “through a third party or by observation” and
o Whenever an employee exhausts his or her leave under other laws, such as the Family Medical Leave Act, California Family Rights Act, or workers’ comp laws” and has not been released to return to work.
These are only the highlights of these expansive new regulations. Given the extent to which they expand employers' obligations, it seems certain that they will result in an increase in the number of claims. Employers need to act now to protect themselves.
More than ever, California employers (and their managers) must be alert to the breadth of impairments that can constitute a disability and the range of accommodations they are required to explore. Employers should also review their policies to ensure that they comply with the regulations and review their job descriptions and performance evaluation forms to ensure they clearly identify which job functions are essential.
These are not the type of discrimination laws that require employers to treat everyone the same. On the contrary, they expect employers to accept certain expenses, burdens, and even inefficiencies if doing so allows a disabled worker to remain in or reenter the workforce.