Top 10 Tips for Complying with California’s Disability Bias Laws

California’s Fair Employment and Housing Act (FEHA) provides employees with disability discrimination protections that are even more stringent than the federal Americans with Disabilities Act (ADA) requirements.

For California employers, compliance with the disability laws is a complex maze with many potential pitfalls that can result in costly litigation. Here are 10 suggestions on how to minimize potential liability, courtesy of attorney James Brown at Sedgwick LLP in San Francisco. 

1. Remember FEHA’s broad definition of ‘disability.’ 

California considers a physical or mental condition to be a “disability” if it “in any way limits” one or more major life activities. As with the ADA, that determination is made in California without regard to certain mitigating measures such as medications.

However, unlike the ADA, the FEHA prohibits employers from considering any mitigating measures, including ordinary eyeglasses or contact lenses.

Because working, including the ability to perform one particular job, and common activities like walking and breathing are considered major life activities, the FEHA’s broad definition of “disability” renders virtually everyone in the workforce as potentially disabled. 

All too often the fact of a mental or physical condition that might be a disability isn’t raised by an employee until a performance or attendance issue results in disciplinary action or coaching.

You must be careful to recognize the potential disability issue during the disciplinary process or risk an after-the-fact claim that the actions you took were discriminatory. Likewise, if an employee asks for some type of special treatment (for example, a schedule change or duty modification), you should attempt to determine if there’s a disability underlying the request. 

2. Be sure to engage in the ‘interactive process.’ 

Once you determine that an employee has a covered disability, you have an obligation to engage in an interactive dialogue with her to determine whether there’s a “reasonable accommodation” you can provide that will allow her to perform the essential functions of the job.

In many instances, an employer will receive a physician’s note with work restrictions that at first glance appear too onerous to even consider. However, even if that’s the case, you must review the restrictions and discuss possible accommodations with the employee, including soliciting suggestions from her. 

You needn’t accept the accommodation requested by the employee; rather, you need only provide one that is “reasonable” under the circumstances. However, failing to engage in any sort of discussion with the employee (and disregarding the physician’s note and the employee out of hand) will likely result in a lawsuit. All discussions should be documented for later use as evidence that you complied with your obligations. 

Additionally, while employers generally don’t need to offer an accommodation to employees who don’t request one, to the extent that you already know that an employee is disabled and can no longer perform the essential functions of her job because of the disability, you must take affirmative steps to inform the employee of and offer her other open jobs for which she is minimally qualified. 

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3. Watch out for ‘regarded as’ situations. 

Just like the ADA, California’s disability discrimination law not only protects employees with disabilities but also protects employees who are “regarded as” having covered disabilities, even though they may not actually be disabled.

An example is the employee who has fully recovered from a stroke or heart attack but who is mistakenly treated by his employer as still having some present disabling condition.

California’s law is aimed at protecting against employees being treated less favorably because of a perception that they are disabled. Even if there’s no actual disability, you must take care to make sure there’s no unfavorable differential treatment. 

4. Avoid ‘history of’ or ‘record of’ disability claims. 

California’s law also protects employees who are discriminated against simply because they have a history of disabilities or there is some record of them previously having disabilities.

This might be exemplified by a person who many years ago had a heart attack, a life-threatening illness, or any treated medical condition but has been healthy ever since. If you take an employment action based on that history of a disability, you could face liability. 

To guard against differential treatment based on history of a disability, you should disseminate any information about employees’ medical conditions solely on a “need-to-know” basis.

Any medical information that your company receives must be maintained in confidential files, usually under lock and key, with only the HR manager or safety manager having access. Supervisors and managers must be trained to recognize the risks of differential treatment based on such information in case the employee mentions her earlier condition to others. 

5. Use up-to-date job descriptions. 

Once an employee informs you of any work restrictions, you must identify the essential job functions and measure them against the work restrictions to determine if an accommodation can be provided to allow the employee to perform the essential functions.

If there is a preexisting job description that contains the position’s primary requirements, there’s at least some presumption that those requirements are in fact the essential functions of the job. If there is no job description, and one is created after the work restrictions come to light, there’s an increased risk of a dispute over whether certain tasks are actually essential functions. 

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