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AB2222
(3/19/01)
A disability law that quietly passed the state Legislature will greatly expand the range of protected workers and could force major changes in California workplaces. Protection as intentionally stronger than those afforded by the ADA.
It protects from employment discrimination people with a wide range of impairments and medical conditions.
The new law is likely to generate lawsuits and "potentially increases the burden of the employer."
The Prudence K. Popping Act makes it clear you should rely on state law when deciding a state case, except when the ADA provides more protections for people with disabilities.
One key difference, is the definition of a disability. ADA says it's an impairment that substantially limits a major life activity; the state law does not include the word "substantially."
Under California law and the ADA, employers are required to make an effort to accommodate people with disabilities. The new law expands the coverage of disability, the ADA courts contracts the coverage of disability, eg. United Air Lines with regards to hiring a myopic applicant as a pilot.
The intent of the California legislature is that courts determine whether a condition limits a major life activity without respect to any mitigating measures.
Disability discrimination and reasonable accommodation should be taken seriously and should be discussed in person in a confidential setting in a timely way and in good faith.
The bottom line is that conditions and requests for accommodation that employers may have once declined to consider, they must now take more seriously.
The ADA establishes a floor of employee rights and employer obligations below which a state cannot go. Nothing in the ADA precludes a state from granting greater rights or imposing greater obligations, however, and FEHA will provide broader coverage of physical and mental disabilities than the ADA.
For example, the California law will require only that a mental or physical disability "limit" the major life activity, not that the disability "substantially limit" the major life activity, as required by federal law. Under California law, the determination as to whether a person is disabled will be made without regard to mitigating measures, such as medication, assistive devices, or reasonable accommodation. Finally, California law will provide that "working" is a major life activity regardless of whether the actual or perceived limitation "implicates a particular employment or a class or broad range of employment." Under Federal law, the major life activity of working is typically viewed only as a class or broad range of employments.
There are other changes which will call for review of some practices within the University community regarding use of medical examination for new prospective employees who have received a conditional job offer. It was lawful to require a general medical examination for all incoming employees in the same job category but as of January 1, 2001, such examinations may only be required if they are job-related and consistent with business necessity and if they are required of all entering employees in the job category. Employers may continue to offer voluntary general medical examinations as part of an overall employee health program, but there are other legal restrictions that would apply to such a program.
In the coming months, the FEHA will issue proposed regulations under the AB2222 amendments to the FEHA and will issue other explanatory materials to aid the employer community in understanding and complying with these changes. It is unlikely that final regulations will be in place by Jan. 1, 2001. If we are or become aware that an employee or applicant has a disability, the amendments to the FEHA make it the employer's responsibility to initiate an interactive process with the employee or applicant to determine reasonable accommodations. The elements of the interactive process were described recently in a 9th circuit case entitled Barnett v. U.S. Air (Oct. 4, 2000), 2000 U.S. app. Lexis 24797 as follows:
It is also suggested that managers and supervisors check current job descriptions or review descriptions before advertising for vacancies to ensure that the job descriptions in place on Jan. 1, 2001, accurately reflect the whole spectrum of essential job functions, including the ability to get to work reliably and on time; the ability to be present in the workplace (if essential); the ability to initiate and maintain cooperative relationships with co-workers, managers and supervisors, customers/clients, and members of the public (if essential); the ability to work with these same persons harmoniously and cooperatively and as a team player (if essential); the ability to follow directions, and the like.
As before, we continue to expect that judicial decisions will follow the tradition and practice of most employers to provide more in the way of employer accommodation for a longtime, satisfactory employee whose performance or reliability begin to deteriorating performance issues with all employees in a timely fashion.
Susan M. Thomas
University Counsel
Office of the General Counsel
1111 Franklin Street, 8th Floor
Oakland, CA 94607-5200
Telephone: (510)987-9752
Fax: (510)987-9757
e-mail: susan.thomas@ucop.edu