Gov. Davis has signed into law a sweeping measure, A.B. 2222, that strengthens the disability discrimination protections for California employees. Because the new law—which goes into effect Jan. 1, 2001—could bring a flood of new disability-bias lawsuits, it’s more important than ever to use caution when handling accommodation issues.
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New Rights For Disabled Workers
The new measure is broader than the federal Americans with Disabilities Act. Plus, because the new rules lower the threshold for who will be considered disabled, more employees will be able to claim protection. Here are the key provisions:
- Major life activity doesn’t have to be substantially limited. Under the ADA, a physical or mental impairment is a disability only if it “substantially” limits a major life activity. In contrast, the new California law lowers this standard, stating that the impairment only has to make engaging in a major life activity “difficult.” It’s unclear how courts will interpret this new language, but the statute is intended to give employees more protection than the ADA.
- Mitigating measures must be ignored. The U.S. Supreme Court ruled last year that under the ADA, corrective measures that counteract an impairment—such as medication or hearing aids—must be taken into account when determining whether an individual is limited in a major life activity and therefore considered disabled. The new law, however, provides that the question of whether a person is disabled must be evaluated without regard to such mitigating measures.
- Working as a major life activity. The ADA says an employee is disabled from the major life activity of working only if their condition prevents them from working in a broad range of positions, not just a single job. Under the state legislation, a person is disabled regardless of whether their limitation affects only a particular job or a broad range of jobs.
- Limitation required for mental disability. Closing a gap in the law, the new legislation requires that to be protected, a mental disability, like a physical disability, must limit a major life activity.
- New protection for people with cancer. The law clarifies that it’s illegal to discriminate against someone who has cancer or had it in the past, regardless of whether it currently interferes with a major life activity.
New Reasonable Accommodation Obligations
The new rules also strengthen the reasonable accommodation rights of employees and job applicants. State and federal courts have encouraged employers to engage in a dialogue or ‘interactive process’ to determine whether a disabled applicant or employee requires a reasonable accommodation and what options are available.
Now that obligation has been incorporated into state law, and you can be sued for failing to discuss an accommodation with a disabled employee or applicant who requests one. This is true even if it turns out that no appropriate accommodation is available for the person.
What To Do Now
By creating broader protections than the ADA, the new law may encourage even more employees and applicants to go to court claiming you discriminated against them on the basis of a disability. To keep from being blindsided, Mary Maloney Roberts, a partner with the Oakland office of Crosby, Heafy, Roach & May, suggests creating a written policy stating that it’s an employee’s responsibility to inform you if a disability interferes with their ability to perform their job.
When someone does request an accommodation, or it’s apparent to you that one is needed, it’s critical to respond promptly. If it’s a close call whether the person is actually disabled and protected by the law, the safest approach is to give the employee the benefit of the doubt and look for a solution. But you’re within your rights to refuse to hire or terminate someone if no reasonable accommodation will allow them to perform their essential job functions and there’s no other available position that the person is qualified for.