Pursuant to recent amendments to the California Fair Employment and Housing Act (FEHA) employers with workers employed in the State of California have obligations to disabled employees and applicants that go beyond those provided under the federal counterpart, the Americans with Disabilities Act. (ADA). The amendments, which became effective January 1, 2001, affect several aspects of the law. Here are the highlights of the new law.
At the outset, the definition of “disability” is much broader than under federal law. While federal law defines “disability” as one which “substantially limits” a major life activity, under the amended California law, a “disability” need only “make a major life activity difficult.” The amendment also specifically provides that a mental disability, like a physical disability, must limit a major life activity to qualify for protection. The new law also broadens the concept of “major life activity” to include “physical, mental, social and employment – related activities.” Furthermore, an employee will be considered disabled if he or she cannot perform a specific job. Under federal law there must be a broad category for jobs that are off limits for there to be a major life activity limitation.
The California legislature also took steps to avoid the United States Supreme Court’s 1999 decisions, which held that corrective measures should be considered in determining whether an individual is disabled. Going forward in California, an employee’s disabilities are to be determined without regard to corrective measures available. Thus, even if corrective lenses eliminate a pilot’s physical disability, she may still be disabled because the mitigating measure is irrelevant to the finding of a disability.
Individuals who have or have had cancer are expressly protected from discrimination whether they are able to perform major life activities without limitation.
Up to now, case law has indicated that employers must engage in a dialogue with disabled employees and applicants to determine what reasonable accommodations might be appropriate. The amendment mandates that the employer engage in the so – called “interactive process” with both applicants and employees who request accommodation to determine whether there are reasonable accommodations that would be effective. The failure to engage in a dialogue can result in liability even if there is no reasonable accommodation available at the end of the day.
Finally, the law specifically prohibits pre-offer physical and mental examinations but does allow them post-offer provided they are job-related, necessary and required of all employees in the same job category.
It is yet to be determined how either the courts or the Department of Fair Employment and Housing will interpret the law.
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