California Adopts New Disability Regulations
We recently posted about California's adoption of new pregnancy disability regulations, which took effect December 30, 2012. On December 18, California further adopted general disability regulations governing accommodation requirements for non-pregnancy related disabilities. The new regulations are 23 pages in length and contain definitions of mental and physical disabilities, explain essential versus non-essential job functions, and provide detail on employer and employee responsibilities in engaging in the interactive process and providing reasonable accommodation. The new regulations incorporate the broad disability definitions and standards set forth under the recent amendments to the federal ADA, making the analysis of whether an employee is disabled much more similar under California and federal law than it used to be. In simplest terms, it is rather easy to qualify as "disabled" under California (and federal) law. Thus, in disability discrimination cases, the pivotal liability analysis will focus on the employer's response to the disability, not whether the employee qualifies as disabled. In short, almost any condition (save and except very minor conditions, such as a common cold or scrape) qualifies as a disability as long as it limits a major life activity in some way. The California regulations make clear, like the recent amendments to the ADA, that mitigating measures (such as glasses or contact lenses) may not be considered when determining whether a condition limits a major life activity. Additionally, where the major life activity of working is considered, a condition can be determined to limit an employee's ability to work even if the condition only limits the employee's performance of one particular job (as opposed to an entire class of jobs).
While the new regulations are too lengthy to summarize in their entirety in this post, there are some interesting points worth noting. First, the regulations contain a lot of discussion about considerations of transferring a disabled employee to a vacant alternative position as a reasonable accommodation. This concept is not new in and of itself. However, what is new is that the regulations expressly state that employers are required to give preference to disabled employees when filling a vacant position. The only exception is that the employer is not required to ignore a bona fide seniority system.
The regulations also discuss the circumstances under which employers may require medical documentation to support a request for reasonable accommodation. Interesting in this regard is that the regulations imply that an employer is not entitled to request medical documentation in every circumstance. The regulations instead say that the employer may request medical documentation "when the need for reasonable accommodation is not obvious." Furthermore, in situations where the employer seeks medical documentation, the employer must communicate its requests (whether initial or supplemental) through the employee (not directly to a medical provider). California (unlike federal law) continues to disallow employers from seeking diagnosis information or any medical information not necessary to determine the need for reasonable accommodation. Finally, where the employee needs reasonable accommodation for over a year, the employer may request further medical certification on a yearly basis. The regulations do not allow requests for recertification at earlier or more frequent intervals.
All California employers (in particular, their Human Resources or other personnel responsible for managing leave requests or accommodation requests) should review the new disability regulations to ensure that their practices comply with the standards set forth therein.