In December, the Fair Employment and Housing Commission approved an overhaul of California's disability discrimination regulations as one of its last acts before being replaced by the Fair Employment and Housing Council on January 1, 2013. The regulations took effect on December 30, 2012, and are available here. They expand protections for disabled employees and set forth new requirements regarding disability discrimination, the interactive process, and reasonable accommodations. As a result of these new regulations, disabilities and medical conditions that may not previously have come within the Fair Employment and Housing Act (FEHA) may now be covered. Here are the key changes:
Emotional "Support" Animals May Be Required as a Reasonable Accommodation
The regulations introduce requirements for "support" animals, a type of "assistive animal" not previously included in the FEHA regulations. Support animals are distinguished from guide dogs and other service animals that employers already might expect to accommodate for certain disabilities. A support animal is a "dog or other animal that provides emotional or other support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities such as major depression."1 The definition does not specify, however, what type of animal, or what type of support, is required in order for the support animal to be necessary as a reasonable accommodation.2
Under these new regulations, HR professionals may be faced with, for example, an employee's request to bring a support animal to work as an accommodation for depression. To make such a request, the employee must submit certification from a "health care provider," which now includes clinical social workers, therapists, chiropractors, and other medical professionals.3 The implication of these new regulations is that employers may see an increase in the number of employee requests to bring assistive animals to the workplace. Since animals in the workplace may create significant challenges with regard to co-workers and business operations, employers should review the applicable regulations and consult with counsel regarding this new area of the law when considering such requests.
New Examples Added to the Definition of "Disability"
The definitions of "mental" and "physical" disability have been expanded, and specific examples have been added, including autism spectrum disorders, cerebral palsy, heart disease, multiple sclerosis, seizure disorder, clinical depression, obsessive compulsive disorder, post-traumatic stress disorder, schizophrenia, and bipolar disorder.4
Examples Added to the Definition of "Major Life Activities"
"Major life activities" is "construed broadly" to include physical, mental, and social activities such as sleeping, concentrating, thinking, communicating, and interacting with others.5
Clarification of Employers' and Employees' Obligations during the Interactive Process
The new regulations include an in-depth description of the interactive process and reinforce that it is the employer's responsibility to initiate that process.6 They also set forth new requirements, such as the employer's obligation to initiate the interactive process after becoming aware of the need for an accommodation "through a third party or by observation."7
Employers should carefully review these regulations, and ensure that compliance with the new requirements does not unintentionally violate other disability laws. For example, while the new regulations require employers to initiate the interactive process when they become aware of the need for an accommodation through "observation," they also make it clear that both "perceived" and "potentially disabling" conditions are now protected.8 Therefore, employers who have observed an employee's need for an accommodation should be cautious when communicating with employees about their observations in order to avoid running afoul of the protections against discrimination based on perceived or potential disabilities.
Additionally, while employers should comply with the new obligation to initiate the interactive process when they are informed of the need for an accommodation by a third party, they should be cautious not to share protected medical or personal employee information with third parties when it is inappropriate or prohibited by privacy laws.
"Reasonable Accommodation" Specifically Includes Telecommuting and Reserved Parking Spaces
A more lengthy definition of "reasonable accommodation" has been added, with specific examples of reasonable accommodations such as reserved parking spaces, modifying supervisory methods and employer policies, permitting telecommuting, and, as discussed above, bringing assistive animals to the workplace.9 The regulations now also require that disabled employees be provided with accommodations that allow them to "enjoy equivalent benefits and privileges of employment" as similarly situated, non-disabled employees.10
Discussing a Job Function in a Performance Review Now May Help Prove the Function Is "Essential"
"Essential function" now is defined to include "reference to the importance of the performance of the job function in past performance reviews" as one example of the type of evidence that may demonstrate whether a function is "essential."11
"Health Care Provider" Includes New List of Therapists and Medical Professionals
The definition of "health care provider" now includes an expansive list of professionals, such as marriage and family therapists, acupuncturists, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, and physician assistants.12
"Family Member" Now Includes Fourth-Degree Relatives
A new definition of "family member," relevant to various disability and genetic discrimination claims, includes relations up to the fourth degree, such as great-grandparents, great-aunts and great-uncles, and great-great-grandparents.13
The above are just a few of the issues presented by the final regulations. Employers should familiarize themselves with these important changes to California disability discrimination law, particularly when considering a request for a reasonable accommodation, and make any necessary changes to their policies or practices.
For more information on California employment laws and regulations relating to disability discrimination or other employee matters, please contact Fred Alvarez, Rico Rosales, Marina Tsatalis, Charles Tait Graves, Laura Merritt, Alicia Farquhar, or another member of the firm's employment and trade secrets litigation practice.