The Department of Fair Employment and Housing recently began enforcing newly revised regulations addressing discrimination based on disability. The final regulations, which took effect on December 30, 2012, primarily update the old regulations. Among other things, the new regulations:
- include several updates to the definition of “disability” to conform to the federal Americans with Disabilities Act Amendments Act of 2008 and the broad definition contained in Government Code section 12926.1;
- provide examples of disabilities including chronic and episodic conditions, and temporary disabilities. The new regulations note a few exclusions from the term “disability,” such as the common cold, mild cuts or abrasions, and the flu;
- clarify that the term “medical condition” may include a “genetic characteristic” (in order to conform to the federal Genetic Information Non-Discrimination Act);
- add guidance regarding the phrase “essential job functions,” and specify that the elements of a discrimination claim now require the employee to establish that he or she can perform the job’s essential functions, with or without accommodation;
- provide more detail regarding the “interactive process” obligations for both employers and employees. Notably, an employee’s exhaustion of California Family Rights Act or Family and Medical Leave Act leave is now considered notice to the employer that the employee may need an accommodation; and
- recognize medical leave as a form of accommodation, but expressly state that employers need not provide “indefinite” leave.
Article courtesy of Thomas Ingrassia of Petit Kohn (www.pettitkohn.com)
The Fair Employment and Housing Commission has been cleaning up its regulations and laws in the area of pregnancy, disability and family and medical leave. They just released the final regs for pregnancy disability that you can get here. It’s actually a very clear document that you probably should save or take the time to read. Thankfully, no big surprises. Remember, this leave applies to any company with 5 or more employees. Updated policies are posted in the California Policies area of the Personnel Forms on HR That Works.
They are working on a final doc for disability accommodation regs…which does hold a few surprises. We’ll get that to you too once finalized.
We love the Job Accommodation Network. They are a true resource for employee and employer alike. I encourage you to check out their excellent and free video series by clicking here. Archived titles include:
- ADA Update
- Managing Emotions in the Workplace: Victims, Villains, and Heroes (by yours truly)
- Providing Reasonable Accommodations to Employees with Mental Health Impairments
- Understanding and Accommodating Mobility Impairments in the Workplace
- Profit by Investing in Workers with Disabilities
Upcoming titles include Harnessing the Accessibility Features of Mobile Devices for Use as Reasonable Accommodations, Current Events in Accommodation, Learn More About Accommodations for Executive Functioning, and more.
In the case of Jones v. Nationwide a broker was fired because he failed his Series 65 exam on numerous occasions and never asked for any kind of disability accommodation until he was about to be fired. The court said the company was in their rights to not allow additional time as an accommodation to take the exam. Because he was required to be licensed to do his job and because he never asked for an accommodation in a timely matter the employer won the case. Note he was also offered a transfer to a lesser job which he declined.
The EEOC is proud of its lawsuits. I used to be proud of mine too…until I realized thy cause more damage than good…even where there was bad conduct. According to the EEOC’s press release page these are the claims from just one week:
As you can see from the titles, disability and pregnancy leave have been major targets. Employers must do two things to better manage these claims: First, take disability requests and harassment complaints seriously. If you don’t know what to do, then get help. Secondly, get Employment Practices Liability Insurance. See the checklist on HR That Works. I bet every one of the companies sued that didn’t purchase it wishes it had. Also understand this – these settlements and verdicts are LESS than they would be if brought by private attorneys in state courts.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued a revised publication addressing veterans with disabilities and the Americans with Disabilities Act (ADA). The revised guide reflects changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood — such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully. [Prior to the ADA Amendments Act, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.]
As large numbers of veterans return from service in Iraq and Afghanistan it is important for employers to be prepared.
The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.
Attendance policies that require employees to provide a doctor’s note stating the nature of the absence before the health-related absence would be excused could result in unlawful medical inquiries under the ADA. In a case filed by the EEOC against Dillard’s department stores on behalf of employees who were affected by such an attendance policy (EEOC v. Dillard’s, Inc.), the EEOC claimed that the employer violated the ADA when it required that doctor’s notes in support of an absence specifically identify the nature of the illness, or the absence would be treated as unexcused. Some employees were disciplined and terminated for these “unexcused” absences.
The U.S. District Court for the Southern District of California concluded that Dillard’s attendance policy, on its face, permitted supervisors to conduct impermissible disability-related inquiries. Dillard’s policy required employees to disclose “the nature of the absence (such as migraine, high blood pressure, etc ….)” and “the condition being treated.” Such an inquiry by Dillard’s, the court held, may tend to elicit information regarding an actual or perceived disability and invited intrusive questioning into the employee’s medical condition in violation of the ADA. Indeed, the ADA regulations make clear that an employer “shall not … make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” The court found that there was no evidence indicating that Dillard’s policy was job-related or a matter of business necessity.
This case provides a strong reminder for employers to review their attendance policies to ensure that they comply with today’s interpretation of workplace laws to avoid the EEOC’s scrutiny. The court did provide some guidance for Dillard’s, and employers in general, when it noted that “Dillard’s could have required its employees to submit a doctor’s note specifying the date on which the employee was seen, stating that the absence from work was medically necessary, and stating the date on which such employee would be able to return to work.”
A review of the EEOC’s press release from the 30-day period between December 13 and January 13 reveals the following:
Bottom line: The EEOC is cranking it up. Make sure you have your disability, discrimination, and sexual harassment training and tools up to date…or you could be the next press release!
The Case of Salas v. Sierra Chemical (2011) caused quite a stir because the appellate court dismissed a disability discrimination claim of undocumented alien based on unclean hands. Now the California Supreme Court will decide this far ranging issue. The appellate court essential took much of the teeth out of a legislative amendment to protect illegal aliens against discriminatory and other illegal workplace conduct…regardless of their status. We’ll be keeping an eye out for this one!
ELK GROVE, CA — The California Department of Fair Employment and Housing (DFEH) announced today that United Parcel Service (UPS) must pay more than $96,000 in damages after the company fired employee Eva Linda Mason because of her disability. The Fair Employment and Housing Commission (Commission) found that UPS had unlawfully terminated Ms. Mason even though she could perform the essential functions of her job.
UPS hired Ms. Mason in 1997 primarily as an Operations Management Specialist to handle customer calls and complaints on shipments. Although she occasionally located packages in a warehouse, handling packages was not part of her job. After Ms. Mason had knee surgery and took a leave of absence to recover in 2007, she continued to carry out the essential customer service functions of her job. Nonetheless, UPS perceived Ms. Mason as disabled because she had some restrictions, such as limited standing, walking, bending, and kneeling. UPS had a 12-month cap on the length of time employees with disabilities could be reasonably accommodated from their regular duties. UPS applied this cap to Ms. Mason and fired her in August 2008.
“Using a 12-month cap to fire disabled employees is unlawful under the Fair Employment and Housing Act (FEHA),” said the Department of Fair Employment and Housing Director Phyllis Cheng. “Employees with disabilities must be allowed to work if they can perform their essential job duties with or without accommodation.”
The Commission ordered UPS to pay $96,170 in damages, including $10,000 in administrative fines to the State. UPS must also post a notice about its liability and develop a policy and train management on disability discrimination.