Human Resources: Disability definition expanded by California statute

Disability definition expanded by California statute By ADA Compliance Guide, Â©Thompson Publishing Group, Inc. Employers that are unaware of the recently expanded definition of disability in California''s anti-discrimination law are in for "a surprise land mine," warned Julianne Broyles, director of insurance and employee relations for the California Chamber of Commerce. The new law (A.B. 2222), which takes effect Jan. 1, requires employers in California to determine if individuals have disabilities without considering whether they use mitigating measures. In addition, the law defines a disability as a physical or mental impairment that limits a major life activity, rather than substantially limits, as the ADA provides, and requires employers to engage in the interactive process for identifying a reasonable accommodation. Unlike the ADA, which has caps on damages, compensatory and punitive damages are unlimited in California, setting unwary employers up for potentially huge liability, cautioned Nancy O''Neill, an attorney with the law firm of Jackson, Lewis, Schnitzler & Krupman in San Francisco. Mitigating measures The law, enacted last year, amends the California Fair Employment and Housing Act, which, like the ADA, prohibits employers from discriminating based on disability. As amended, the California law mandates that employers make disability determinations "without regard to mitigating measures such as medications, assistive devices or reasonable accommodation, unless the mitigating measure itself limits a major life activity." This amendment is diametrically opposed to the U.S. Supreme Court''s rulings (Sutton v. United Air Lines; Murphy v. United Parcel Service; and Albertsons v. Kirkingburg) that disability under the ADA is to be determined in light of mitigating measures. After Sutton, employers often were denying reasonable accommodation requests from employees who use mitigating measures, said Deborah Sanders, co-chairman of the Bar Association of San Francisco''s committee on disability rights, which supported A.B. 2222. There is a big difference between not having a disability and having a condition that can be treated with medications, she emphasized. Employers'' hard-line stances served as impetuses for employees to litigate their claims to prove that they had disabilities in spite of mitigating measures, which are not panaceas, she stated. The law "opens up a new class of employees who have disability law protection," said O''Neill. She advised California employers "to be very aware of accommodation issues even if employees have devices or medications that mitigate." Limitation Moreover, the California law defines a mental or physical disability as a condition that limits a major life activity, rather than the ADA''s more stringent definition, providing that a physical or mental impairment must substantially limit a major life activity to be covered. "This changes the definition of disability" in California, remarked O''Neill, speculating that "limit" simply means "anything that makes it difficult" to perform a major life activity. This new provision opens the state law to "a new class of employees," she said. The state law also defines working as limited if someone is restricted in performing only a single job, rather than a broad range of jobs. Most courts have ruled that under the ADA working must be limited in a broad range of jobs for a major life activity to be substantially limited, a position the EEOC sets out in its Technical Assistance Manual on Title I. In addition to prohibiting discrimination based on disability, the state law prohibits discrimination based on medical conditions. A.B. 2222 adds cancer and genetic characteristics as medical conditions that are covered regardless of whether they limit major life activities. Interactive process A.B. 2222 not only expands the definition of covered conditions, but also requires an employer to engage in a good-faith interactive process for identifying a reasonable accommodation in a timely manner. While the EEOC''s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA says that employers should enter informal, interactive discussions with employees requesting accommodations, courts generally have held that there is no independent violation of the ADA for failing to do so (Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997)). However, the U.S. Circuit Court of Appeals for the Ninth Circuit, whose decisions apply to California, Alaska, Arizona, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon and Washington, has ruled that the interactive process is mandatory under the ADA (Barnett v. U.S. Airways Inc., 228 F.3d 1105 (2000)). Employers have an incentive to engage in the interactive process in light of at least one appeals court''s decision that employers making good-faith attempts to comply with the ADA are shielded from punitive damages (EEOC v. Wal-Mart Stores). Nevertheless, many employers simply deny reasonable accommodation requests without any discussions with employees. They consider the request only briefly and reply, "We can''t do this and they say, ''Sorry,''" according to O''Neill. Employers in California will have to change their tune after A.B. 2222. O''Neill described the addition of the interactive process requirement as "one of the biggest changes. Employers do not pay enough attention to the requirement to engage in the interactive process." Following A.B. 2222, employers in California will be required by law to "at least talk with employees, even if it will be an undue hardship to accommodate them. It will be a difficult exercise if there is no way to accommodate the employees, but employers will have to take this extra step, which may or may not be futile." Employee training Employers in California should alert their managers about the new law''s requirements, recommended Broyles. California employers should consider training managers about what is a disabling condition under state law, what is a reasonable accommodation and the interactive process for responding to a reasonable accommodation request. "There are a lot of things that employers will have to watch. They may be liable not just to employees, but also customers," she said. Broyles concluded that employers in California "literally will have to mind their Ps and Qs and be extraordinarily aware of how to run their employment selection and handle current workers because now almost anything will qualify as a disability."