HR Management & Compliance

Understanding FEHA’s disability definition

<p>If you struggle with understanding whether you must accommodate an employee with a mental disorder, you&#39;re not alone. The Americans with Disabilities Act (ADA) can become a tricky labyrinth to navigate, and now the maze has gotten even more complicated. </p>

<p>California employers also have to meet the requirements of FEHA &ndash; the Fair Employment and Housing Act, which in many ways is more pro-employee than the federal law. And all employers may have new considerations since the American Psychiatric Association has published its new Diagnostic and Statistical Manual of Mental Disorders (DSM-5). </p>

<p>DSM-5 broadens the definition and scope for several mental disabilities, which may mean that more employees are diagnosed, and could also mean that more of these diagnoses meet the definition of disability under the law. </p>

<p>To see how this might affect employers, let&#39;s get back to basics and take a look at what FEHA considers a disability. </p>

<h3>How does FEHA define disability? </h3>

<p>FEHA defines disability broadly to include: a physical, mental or social limitation or medical condition that limits one or more of the individual&#39;s major life activities. In this case, the word &quot;limits&quot; means &quot;makes achievement of the activity difficult.&quot; And &quot;major life activity&quot; encompasses physical, mental, or social activities or working. </p>

<p>&quot;Anything that impacts the ability to come to work, stay at work, or perform work is a major life activity. Which, if it&#39;s limited, brings them within the definition of FEHA.&quot; Patricia Eyres explained in a recent CER webinar. </p>

<p>From an employer&#39;s standpoint, remember that &quot;life activities that affect employability or otherwise present a barrier to employment or advancement are incorporated now into the FEHA.&quot; Eyres told us. </p>

<p>Also remember: whether or not a condition qualifies as a disability is determined without regard to mitigating measures. </p>

<h3>FEHA interactive process requirement </h3>

<p>As part of the FEHA regulations, an employer must engage in the interactive process with an employee. </p>

<p>&quot;Failure to engage in the interactive process is itself a violation.&quot; Eyres warned. In fact, employers are required to consider reasonable accommodations when requested by an employee, even if no reasonable accommodation is ultimately available, and even if it is suspected from the beginning that this is true. </p>

<p>The interactive process must also be individualized. Every interactive process must look at 3 things: </p>

<ol>

<li>The individual&#39;s work restrictions and functional capacity (remember: this is an individualized assessment and generalizations or assumptions based on the condition or on other employees in similar situations will not suffice) </li>

<li>The essential job functions of the job they had or the job they&#39;re seeking</li>

<li>The business needs during this time</li>

</ol>

<p>When doing the individualized assessment, remember that for a condition to &quot;limit&quot; a major life activity, that means it makes achievement of the activity difficult. Whether the achievement is difficult should consider: </p>

<ul>

<li>What most people in the general population can perform with little or no difficulty</li>

<li>What members of the individual&#39;s peer group can perform with little or no difficulty</li>

<li>What the individual would be able to perform with little or no difficulty in the absence of the disability</li>

</ul>

<p>The above information is excerpted from the webinar &quot;DSM-5 Standards and ADA/FEHA: Accommodation and Compliance Obligations for New Mental Disorders in California.&quot; To register for a future webinar, visit <a href=”http://ced.blr.com/p/webinars.aspx”>CER webinars</a>. </p>

<p>Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers&#39; comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation. </p>