California Peculiarities Employment Law Blog

The FEHC’s Last Stand: Commission Rides Off Into The Sunset After Wrangling The New Disability Regulations

Posted in 2013 FEHA Update Series: Pregnancy and Disability Regulations

We all know that agency regulations can be informative guidance but, by their nature, extremely detailed and—let’s face it—dry as toast.  The new disability regulations, which went into effect on December 30, 2012, are no exception.  

The regulations seek to “clarify” statutory definitions and employers’ obligations to an employee with an actual or perceived disability.  However, these “clarifications” expand employers burdens under California law.

Expanded Definition Of “Disability” Including: 

  •     post-traumatic stress disorder
  •     autism spectrum
  •     palsy
  •     heart disease
  •     multiple sclerosis
  •     seizure disorder
  •     clinical depression
  •     obsessive compulsive disorder
  •     schizophrenia
  •     bipolar disorder 

Before the regulationsWhether these conditions met the definition of “disability” under California law was subject to debate, as many other conditions. 

After the regulations:  Not much to debate.  The new regulations specifically say that the analysis as to whether a condition is a disability should not be extensive, regardless if it is a condition explicitly recognized by regulations as such. 

Expanded Definition of “Major Life Activities”:  The definition of “major life activities” now includes sleeping, thinking, and interacting with others (which implies that social disorders will now also be considered disabilities).

How To Determine When Functions Are Essential?  The regulations provide additional guidance as to when a job function is essential.  Updated and accurate job descriptions are crucial and are now actually required by the regulations.  Performance evaluations will also assist in determining whether a function is essential.   

The Growing List Of Reasonable Accommodations:  Similar to the new pregnancy disability regulations that we discussed here and here, the disability regulations include a broader list of reasonable accommodations.  

Telecommuting and reserved parking spaces are also specifically added as potential accommodations considered “reasonable.”  The regulations also place emphasis on assistive animals in the workplace, including those for emotional support and not just dogs for the visually and hearing impaired. 

Providing a leave of absence continues to be a reasonable accommodation, but there is no drop-dead time limit for how long the leave needs to be.  Consistent with existing California law, the regulations state that employees must show leave is likely to be effective in allowing them to return to work at end of the leave with or without further accommodations. 

Anything Good For Employers?  Some.  The regulations confirm that making a light duty position permanent is not a reasonable accommodation, and neither is lowering quality standards.  Also, despite the smoking-hot issue of state marijuana initiatives, employers do not have to accommodate the use of medical marijuana in the workplace and can still abide by their drug use policies when employees test positive for marijuana.  Employers should remain cautious, however, when marijuana use surfaces as it may implicate the underlying condition that necessitated the use, which may be considered a disability.

Interactive Process – Who Goes First? According to the regulations, the employer. 

When the employer learns about an employee’s disabling condition—from a direct source, observation, or a third party—the employer is on the hook to initiate the interactive process.  This is problematic because it requires an employer to balance this obligation with the risk of creating a perceived disability claim when no disability exists.  Employers must engage in the good faith interactive process after exhaustion of FMLA/CFRA because they are considered “on notice” and, thus, automatically required to begin the process if a health practitioner extends a leave.    

Can Employers Seek Information To Confirm A Medical Condition?  The regulations say no. 

This poses a challenge for employers who are trying to carry out their burden of identifying potential accommodations.  Employer must also maintain the employee’s leave-related medical information strictly confidential.  Though employers may already be aware that some of these points were already required by California law, the regulations serve to commit them to writing in the disability context.  Also, the regulations confirm that documentation on the interactive process is to be treated like medical information, so keep it separate from the employee’s personnel file. 

Who can certify a disability?  Not only doctors can certify a disability, but marriage and family therapists, podiatrists, nurse practitioners, nurse midwives, clinical psychologists, clinical social workers, acupuncturists, dentists, optometrists, chiropractors, and physician assistants can too!

Workplace Solutions: Employers have more to think about now.  The regulations may be dry as toast, but it is important to make these changes interesting to management employees to ensure they understand the obligations—so, jam up that toast, and put a little butter on that bread!  Review current policies to ensure that the new definitions are incorporated.  Also, training regarding the interactive and reasonable accommodation process are always helpful. 

Up Next:  Phyllis W. Cheng, Director of the California Department of Fair Employment and Housing, who will share her insight into the regulations and their implications for employers.  Following that, we will have updates from our trade secrets, computer fraud and non-compete team.