Employers must understand their legal obligations when an applicant or employee asserts that they are disabled, or when an employer regards the person as disabled, or if the person has a record of a disability. Failing to understand the strict legal requirements can lead to costly litigation.
Federal Law
The Americans with Disabilities Act[i] (“ADA”) governs employers with 15 or more employees and prohibits the discrimination against a qualified individual with a disability. In the ADA Amendments Act of 2008[ii] (“ADAAA”), the ADA was amended and the definition of disability was revised so that it is less difficult for an individual to establish the existence of a disability for legal protection.
Under the ADA, as amended by the ADAAA, there are three ways in which a person can come within the definition of being disabled: (1) the person has an actual disability, in that the individual has a physical or mental impairment that substantially limits a major life activity; (2) the person has a record of an actual disability; or (3) the person is regarded as disabled by virtue of the employer taking a prohibited action because of an actual or perceived impairment that is not minor or transitory[iii].
Following the ADAAA, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its final regulations[iv], which notes that the focus of the ADA is whether discrimination has occurred as opposed to the prior focus of whether an individual comes within the definition of “disabled”. EEOC’s regulations set forth the following nine rules of construction to apply in making the determination of whether or not an impairment substantially limits a major life activity:
- The term “substantially limits” shall be construed broadly in favor of expansive coverage and to the maximum extent permitted by the terms of the ADA.
- One should look to whether a person is substantially limited as compared to most people, and the impairment need not prevent or significantly restrict the individual from performing a major life activity.
- The analysis should not be an extensive one.
- The degree of functional limitation required to satisfy the standard of substantially limited is lower than that applied prior to the enactment of the ADAAA.
- There is no need for medical, scientific, or statistical analysis inmaking the determination of whether an impairment is substantially limiting.
- The determination of whether an impairment substantially limits a major life activity is made without considering the ameliorative effects of mitigating measures (except ordinary eyeglasses or contact lenses).
- Episodic impairments or diseases in remission are disabilities if they would substantially limit a major life activity when active.
- A substantially limiting impairment need limit only one major life activity.
- An impairment lasting or expected to last less than six months can still be substantially limiting.[v]
California Law
The Fair Employment and Housing Act[vi] (“FEHA”) governs employers with five or more employees and provides greater protection to disabled individuals than under federal law. Generally, FEHA prohibits California employers from discriminating against an individual with a known disability (physical and/or mental), a medical condition[vii] or on genetic characteristics (among other protected classifications).[viii]
Both the ADA and FEHA also provide that AIDS and HIV positive status are protected conditions. Under California law a person is considered disabled if they:
- Have a physical or mental impairment that limits one or more of the major life activities[ix]. (Federal law requires the person to be “substantially limited”.) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of that activity difficult to obtain;
- Has a record of an impairment;[x]
- Is regarded as having an impairment.[xi] An example is an employee who has fully recovered from a disabling event, but continues to be treated by the employer as still having some present disabling condition. The recovered individual may not be treated less favorably because of a perception that they are or continue to be disabled where there is no actual disability. To avoid “regarded as” claims, employers should not treat any employee or applicant differently once there is an awareness of any prior disabling condition. It is the burden of the employee/applicant to disclose any condition that would classify them as disabled;
- Is regarded as having a condition that is not presently disabling but could become a physical disability at a later time;[xii]
The ADA[xiii] and FEHA[xiv] do not provide protection to a person, even if disabled, if such disability condition posed a direct threat to the employee’s own health or safety or others.
Another important aspect of the ADAAA, the EEOC Regulations and FEHA is that the effects of mitigating measures are not to be considered when assessing the disability condition, manner or duration of the person’s ability to perform a major life activity. The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effect of mitigating measures.
Legal Obligations When an Applicant or Employee Discloses a Disability Condition: Qualified Individual
The initial inquiry is whether the applicant or employee is a “qualified individual who can perform the essential functions of the position, either with or without a reasonable accommodation?” That question must then be broken down into segments. Is the employee or applicant qualified to perform the essential functions of the job? Do they meet the minimum qualifications of the position? What are the essential functions of the position?
A detailed job description should set forth the physical and mental requirements of the position so that it can be determined what is an essential function and what is a non-essential function. Attendance can be established as an essential function and should be included in job descriptions[xv]. If there are any specific expectations, goals, or quotas, they should be included. If any technical skill or expertise is required, identify it.
Reasonable Accommodations[xvi]
The next step in the analysis once the applicant or employee is determined to be qualified to perform the essential functions of the position is to determine, if the applicant or employee requests or requires a reasonable accommodation, whether such request can be accomplished. The employee has the initial burden of requesting or identifying the need for an accommodation.[xvii]
It is beneficial to ask the employee what they believe will help accommodate the disability, and then the employer must evaluate what type of accommodation would be considered reasonable.
Job restructuring. This accommodation only needs to be considered with respect to a position’s non-essential duties or marginal functions. Restructuring essential job functions is not required, even if an employee claims it is reasonable for an employer to do so.
- Modified Work Schedules. Reduced schedules, flexible starting times and other options can be considered.
- Re-assignment to a vacant position.
- Obtaining equipment or devices that would enable performance (i.e., hearing impaired phones, larger computer monitors, etc.)
- Leave of absence (though it does not need to be indefinite.)
- Telecommuting from home.
Employers do not have to create positions nor reduce expectations or lower standards for the performance of the position or obtain personal use items (i.e., glasses, hearing aids, etc).
Interactive Process[xviii]
The next step is to engage in a good faith ongoing interactive process with the employee/applicant. California law requires that employers engage in an ongoing manner an interactive process with the disabled individual to discuss and determine if a reasonable accommodation can be made[xix]. Recent court decisions have held that this is an ongoing process.
In AM v. Albertsons, LLC, the court held that after an accommodation has been agreed upon, any refusal to accommodate or to continue the interactive process is a violation of the Fair Employment and Housing Act and that even one denial of the accommodation can result in a finding of liability.[xx]
While there is no definitive legal guidance on what the interactive process must consist of, at a minimum employers should discuss with the applicant or employee (and document):[xxi] (1) what aspects of the job cannot be performed and why; (2) the employee’s job restrictions/limitations; (3) the employee’s job description and the essential functions of the job; (4) the employee’s ability/inability to perform the essential functions of the job; (5) any reasonable accommodations, if appropriate; and (6) alternative vacant positions, if the employee cannot perform the essential functions of his or her current position, and any reasonable accommodations applicable to the alternative vacation position.
Any accommodation proposed by an employee must be objectively reasonable. Not every request for an accommodation must be met if such accommodation would interfere with business operations and/or is not reasonable.
Undue Hardship or Burden
An employer may be excused from providing a reasonable accommodation if it can be established that to do so would result in an undue hardship which includes any accommodation that is unduly costly, extensive or that would fundamentally alter the nature of the business operations.[xxii] This analysis must occur on a case-by-case basis and the larger the employer, the less likely the rationale of expense is likely to prevail.
The following factors should be considered when an undue burden analysis is undertaken: (1) the nature and cost of the accommodation[xxiii]; the financial resources of the employer, the number of persons employed by the employer, the overall impact the accommodation might have on the business operations[xxiv]; the availability of tax incentives; and any assistance available from agencies or organizations specializing in assisting employers to provide accommodations such as the California Department of Rehabilitation, the U.S. Department of Health and Human Services and many other public and private organizations.
Terminations
Can the disabled employee be terminated? Can the disabled applicant be denied employment?
It is never a wise decision to terminate any employee who has disclosed a disability condition or to refuse to hire an applicant who has disclosed a disability condition, as such could easily result in a claim of disability discrimination.
It is imperative that prior to any termination decision, the entire situation be evaluated to determine whether: the employee is protected as a disabled individual; the employer has met its legal obligations to engage in the interactive process; whether an accommodation can be made; and how have other similar situations been handled by the employer so that there is consistency of application for policies and procedures. Once these factors are considered, the termination decision can be evaluated and the risks of litigation determined.
Return to Work Issues
If an employee has taken a leave of absence to attend to a disabling condition, the employee must be returned to work to the same or substantially equivalent position following a release from a physician that they are able to safely perform the essential functions of the position, unless doing so results in an undue burden or hardship on the employer.
Lastly, in order to defend against claims of disability discrimination, an employer should have a clearly established policy in its employee handbook setting forth the legal obligations and requirements of both the employees and the employer, the policies should be strictly and consistently applied and all discussions with the applicant/employee and actions taken by the employer should be thoroughly documented.
[i] 42 U.S.C. § 12101 et seq.
[ii] 122 Stat. 3553
[iii] 42 USC §12112(1)(A-C)(3)
[iv] Equal Employment Opportunity Commission, Final Rule, Regulations to Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 76 Fed. Reg. 16978 (2011).
[v] 29 C.F.R. §1630.2(j)(4)(iii).
[vi] Gov’t Code Section 12900 et seq.
[vii] A “medical condition” is one which is related to or associated with a diagnosis of cancer, a record or history of cancer and an individual’s genetic characteristics.
[viii] Pensinger V. Bowsmith, Inc., (Cal. App 5th Dist, 1998) an employer cannot be liable for disability discrimination if the employer has no knowledge of the disability; Avila v. Continental Airlines, Inc. 165 Cal. App. 4th 1237 (2008) (modified at 166 Cal. App. 4th 132) an employee has the burden to establish that the employer knew of a protected disability condition before the employer made an adverse employment decision.
[ix] 42 USC 12102(1)(A) and Gov’t Code §12926 (k)(1)(b)
[x] 42 USC 12102(1)(B) and Gov’t Code §12926 (k) (1) (b)(3)
[xi] 42 USC 12102(1)(C) and Gov’t Code §12926 (k) (1) (b)(4)
[xii] 42 USC 12102(3) and Gov’t Code §12926 (k) (1) (b)(5)
[xiii] 42 USC 12113 (e)(2)
[xiv] Gov’t Code §12940 (a)(1)
[xv] Corder v. Lucent Techs (7th Cir. 1998) 162 F.3d 924
[xvi] Cal. Gov’t Code §12940(m).
[xvii] DFEH v. Lucent Technologies, Inc., (9th Cir. 2011) 642 F.3d 728
[xviii] Cal. Gov’t Code §12940(n).
[xix] Gov’t Code §12926.1(e)
[xx] A.M. v. Albertsons, LLC 178 Cal. App 4th 455 (2009)
[xxi] Cuiellette v. City of Los Angeles, 194 Cal. App. 4th 757 (Apr. 22, 2011)
[xxii] 42 USC 12111(10)
[xxiii] 42 USC 12111(10); Govt’ Code §12926
[xxiv] 42 USC 12111(10); Govt’ Code §12926