We’re encountering challenging disability accommodation situations because of differences in California and federal law. Is the California definition of “disability” always going to be more favorable to employees than federal law? I also don’t understand why whether a person has a disability is determined under California law without considering mitigating measures. If a person is taking medication that completely eliminates the disability, do we have to accommodate it?— Victor C., HR Manager in Gilroy
Victor poses interesting and frustrating points that confuse already complex issues. And yes, there are differences in the California and federal laws addressing employees with disabilities. Victor asks whether California’s definition of a disability is always going to be more lenient than federal law. In short, yes. Under the federal Americans with Disabilities Act, a disability is a physical or mental impairment that substantially limits one or more major life activities. The California Fair Employment and Housing Act (FEHA) doesn’t include “substantially” in its definition, which is much broader and more generous to employees. Also, “major life activities” are more broadly defined under the FEHA and include physical, mental, and social activities. For these reasons, California law, definitions, and regulations should guide California employers.
Dealing with Disabilities
Before employers begin an interactive process to consider an accommodation for an employee, there’s often a desire to determine whether the person is “disabled,” but that’s not the most practical course of action. This is especially true for current employees who won’t be able to stay on the job without an accommodation because of a change in their health or life.
It is generally most practical to simply try to work with an employee’s health condition and do everything you reasonably can to keep the employee on the job. (Notice that I use the term “health condition” rather than disability. Doing so helps to avoid an employee’s claim that he or she was “perceived as disabled” by the employer, which often stems from using the terms “disability” or even “potential disability.”) Employers should keep the communication door open, through the interactive process, to discuss accommodation. Talk to the employee about what is practical, realistic, and achievable to help the worker to stay in his or her current position. If an accommodation has been explored in significant detail, but difficulty still exists with keeping the employee in his or her current position, employers should explore moving the employee to an alternative position.
Often, employers don’t have the luxury of making a quick and easy determination and deciding on a specific strategy. Dealing with disability accommodation and the interactive process is so specific to each given situation that the “rules of the road” often have to be modified to fit the individual involved.
When Medications Mitigate
Victor also asked whether his organization has to accommodate an employee who is taking medication that completely eliminates the disability. Yes, an accommodation may still be requested and needs to be explored even if medication keeps a health condition under control at a given time.
Medication does not actually eliminate the disability; rather, it simply allows it to be controlled for a given period of time. For example, diabetes can be considered a serious health condition and/or a disability. Although it can be treated and controlled with medication, side behaviors and effects may still need to be accommodated, such as the need to take the medication, test blood levels, regulate food intake, and possibly to take breaks.
In another situation, an employee may have AIDS but have no symptoms. This disease can often be treated and assisted by medication, but the recognized status of AIDS as a disability is not eliminated.
A Word About Supervisors
As first-line supervisors are often the primary contact between an organization and an employee, they should understand basic rules for dealing with health issues in the workplace.
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An employee who needs an accommodation may not use the word “disability” and may not specifically request an accommodation, so supervisors must be able to recognize when something happens that triggers a possible need for employer assistance. For example, an employee’s performance may suddenly change. Supervisors must be aware of and sensitive to issues that might be either health conditions leading to a disability or a current condition that may be a disability. Yet, supervisors do not want to appear to be perceiving the health situation as a disability.
Supervisors should also keep communication channels open. If an employee requests something to help do the job, his or her supervisor shouldn’t automatically say “No” without thinking about it and discussing it with HR.
In addition, supervisors should know not to ask about a specific diagnosis even if they observe certain symptoms that they recognize. They should simply say, “What can I do to help you perform your job?” Then, they should let HR help shape the interactive process to make sure it is an ongoing communication with the employee and that reasonable options are explored.
Job Accommodation Network
The U.S. Department of Labor sponsors the Job Accommodation Network, a free resource to guide employers through creative ideas to help employees be able to continue to do their jobs if a health condition begins to limit or change their ability to perform. For more information, visit the Job Accommodation Network’s website.
Conclusion
Dealing with employees with disabilities is tough—the definitions are broad, the obligations are complex, there are few “absolute” ground rules, and each situation is unique. There are no flat-out rules other than to keep the communication channels open, never say “No” until every reasonable avenue is explored and you talk to your lawyer, and don’t ask employees about their medical diagnoses.
Rhoma Young is founder and head of the HR consulting firm Rhoma Young & Associates in Oakland.
Online Training Made Easy
Lawfully addressing workers with disabilities may be confusing, but you can help your supervisors understand their responsibilities and avoid disability discrimination claims through training.
You need to ensure that all employees understand their rights and obligations when it comes to workplace harassment and discrimination, and you’re legally obligated to provide antiharassment training to your supervisory staff.
In partnership with emTRAiN, the leading provider of online training, we make it easy for you to train your workforce—and avoid needless lawsuits. We offer a full range of courses designed just for California employers:
- Preventing disability discrimination—for managers
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- Lawful terminations—for managers
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Before ordering the courses, you can preview video clips and a demonstration of the harassment prevention program online. Just click the “Request a Demonstration” link on our website.