FEHA / ADA 101

CALIFORNIA FEHA REGULATIONS:

MANDATES A GOOD FAITH INTERACTIVE PROCESS

“Employers must engage in a good faith interactive process with employees and candidates who have disabilities to determine the appropriate reasonable accommodations that might overcome the employee’s / applicant’s job limitations.”

This is a stand-alone statutory requirement.

Source: Fair Employment and Housing Act-FEHA (Government Code § 12940(n)

Under both the ADA and the FEHA, “the interactive process requires communication and good faith exploration of possible accommodations between employers and individual employees. That shared goal is to identify an accommodation that allows the employee to perform the job effectively. Both sides must communicate directly, exchange essential information.” (Barnett v. U.S. Air, Inc. 228 F. 3d 1105, 1114-1115 (9th Cir. 2000), revd. on other grounds U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).)

EEOC guidelines on the interactive process (incorporated into the FEHA, see Cal. Gov’t Code § 12926(1)(e)) offer more specific guidance.

The parties must:

  • Analyze the particular job involved and determine its purpose and essential functions;

  • Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;

  • In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position, and;

  • Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer. (See 29 C.F.R. pt. 1630, App. § 1630.9).

The interactive process is used to determine what reasonable accommodations the employee needs in order to keep his or her job. In practice, however; each step along the way includes particular legal requirements and thus poses potential areas for dispute.

California’s Fair Employment Housing Act (FEHA) prohibits discrimination/harassment on the basis of race/color, religious creed, national origin/ancestry, physical disability, mental disability, medical condition (to include no genetic testing), marital status, sex, age, and sexual orientation.

This California law provides a broader protection to employees than ADA or ADEA. Employers must engage in a good faith interactive process with employees who have disabilities to determine the appropriate reasonable accommodations that might overcome the employee’s job limitations.

Under AB 2222, the duty to engage in this process is a stand-alone statutory requirement. An employer will violate the statute by failing to proceed with the interactive process, even if accommodation is not possible. FEHA applies to any employer with five or more employees, and both industrial and non-industrial disabilities fall under the statute.

The Department of Fair Employment and Housing (DFEH) enforces FEHA. An employee’s rights under FEHA may not be waived or bargained away via Collective Bargaining Agreements (CBA), although a CBA may affect whether an accommodation is considered reasonable. Under Workers’ Compensation, a Compromise and Release does not release FEHA liability. Employees can receive a C&R and still sue under FEHA. AB 2222 expands the definition of disability under FEHA, adopts a tough new standard for post-offer, pre-employment medical exams. In addition, it imposes further obligations on employers to engage in an “interactive process.”

It is the legislative intent of the Fair Employment and Housing Act (FEHA) to provide more protection for individuals with disabilities than the federal Americans with Disabilities Act (ADA) of 1990. The statute, as it relates to disabilities, provides protections independent from those in the Americans with Disabilities Act. Due to the broad definition of who may be discriminated against in the workplace, it also provides more protection than the Age Discrimination in Employment Act (ADEA) of 1967.

The law of the State of California contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the legislature that physical and mental limitations are not required to be “substantial,” and that “working” is a major life activity, regardless of whether or not the actual or perceived working limitation implicates a particular employment or a board class of jobs.

LEGAL REQUIREMENTS

The Fair Employment and Housing Act requires that, “once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation would represent an undue hardship to the business operation.”

This is critical, as an employer could fully accommodate a disabled person and still violate the statute if the decisions made were done unilaterally or without first engaging in an interactive process. Employers must meet with employees and discuss openly all available options that would allow an employee to resume/maintain employment, performing all of the essential functions of a position with or without reasonable accommodation.

HOW CALIFORNIA LABOR LAWS DIFFER FROM FEDERAL LAWS

On the federal level, older employees and those with disabilities are protected by the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). While these two acts cover companies with 15 or more employees, CA labor laws on discrimination apply to those with at least five employees.
Furthermore, under FEHA, disabilities need only “limit” rather than “substantially limit” a major life activity. Also, the statute of limitations is longer.

THE INTERACTIVE PROCESS OVERVIEW

FEHA “makes it an unlawful employment practice for an employer or other entity covered by the act to fail to engage in a timely, good faith, interactive process to determine effective reasonable accommodations, if any, at the request of an employee or applicant with a known disability.”

Once it is determined that an employee is disabled and protected under FEHA the employer is obligated to meet with the employee to discuss accommodation options. This is achieved via the following three actions: Interactive Process (IP): This describes all of the activities that occur from the moment that a request is made or the employer perceives an employee to be disabled. These include verbal communications, letters and notices, meetings, research and determinations. Accommodation Meeting: the event(s) of meeting with the employee or applicant. The Accommodation Meeting is an event that must take place as part of the Interactive Process. It is in this meeting that Reasonable Accommodation options are discussed and often determined. Reasonable Accommodation (RA): what is offered or provided to the disabled employee that allows the disability to be overcome without causing undue hardship to the employer or posing a direct threat to the employee or others.

DETERMINING ELIGIBILITY

Employers are to engage with employees or applicants who have a known disability. However, often a request by an employee does not produce requisite information to qualify someone as disabled. In addition, there are times when an employer may perceive an employee or applicant to be disabled. In these cases, an employer may require medical certification to determine the eligibility of a request. Employers are not to be provided diagnostic information, but simple certification of a disability status and a list of all functional limitations/work restrictions.

Persons who are afforded protection under FEHA are:

  1. Traditional employees (regular, at will or by employment contract)

  2. Individuals who work under the control of the employer (temp agency help)

Disabilities protected are intended to be of a broad nature. Nearly every condition that impacts a person’s ability to work or perform a major life function is covered. Some lesser known protected disabilities are: learning disability, cosmetic disfiguration, reproductive problems, past or present conditions (e.g. cancer survivor), genetic disorder (e.g. breast cancer gene carrier)

There are only very few “conditions” that the law specifically excludes from protections. These are: sexual behavior disorders, kleptomania, pyromania, illegal use of controlled substances or drugs (employees in recovery are in most cases protected), and compulsive gambling. Employers are also not obligated to accommodate for medical marijuana use.

Note: Employee conduct resulting from a disability is part of the disability and not a separate basis for termination or discipline. If an employer is aware of a disability or perceives an employee to have a disability that may be contributing to a performance issue, the employer must address the possible connection. This is done by engaging with the employee to determine if they have a protected disability and if there are accommodations possible to mitigate the negative behavior/actions.

TYPES OF REASONABLE ACCOMMODATION:

The following is a sample of generic accommodation options that can be considered for a variety of disabilities and situations. No two situations are alike. Each employee is different and each employer is different. Identifying reasonable accommodations varies on a case by case scenario

  • Restructuring Jobs – A job may be modified so that a person with disabilities can perform the essential functions of a position. It is first necessary to identify those tasks that may be difficult for an individual to accomplish because of a disability. The tasks should then be analyzed to identify those factors which specifically make it difficult for the person with disabilities to effectively accomplish the job. These factors should be eliminated by changing the job contents; eliminating nonessential elements; re-delegating assignments; exchanging assignments with other employers; redesigning procedures for task accomplishment; or, in the case of non-probationary employee; reassignment to another position. All this being careful not to eliminate essential job functions.

  • Modifying Worksites – Changes may be needed in the worksite area when there is an employee with disabilities. This may include accessibility to and around the work area, restrooms and other facilities used by the employee. Adjustments may be as simple as: purchase of equipment; moving equipment or furniture; lowering shelves; moving files.

  • Adjusting Work Schedules – Some individuals with disabilities are denied employment opportunities because they cannot meet the requirements of a standard 40-hour work week. For these individuals, accommodations can be considered as follows: change work hours; temporary reduction of work hours.

  • Flexible leave Policies – The Department’s Alternative Work Schedules program may be used to accommodate employees with disabilities.

  • Providing Equipment – Through new technologies, numerous assistive devices are available to aid individuals with disabilities. Equipment cannot be of a personal nature such as eyeglasses, wheelchairs, prosthetic limbs or similar devices, and must be directly related to the performance of the job. Before purchasing any equipment, the employee must be consulted to determine what is needed and/or wanted.

  • Reassignment – In cases of current employees who develop disabilities during their employment, or whose disabilities are aggravated during their careers, managers and supervisors have a responsibility to make a concerted effort for their continued employment. Reassignment is the last resort and is required only after it has been determined that : (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, and (2) all other accommodations would impose an undue hardship.

STATUTES AND LIMITATIONS

An employee has 365 days from a discriminatory act to file a claim with Department of Fair Employment and Housing (DFEH) and 300 days to file with the Equal Employment Opportunity Commission (EEOC).

An employee’s rights under FEHA may not be waived or bargained away via a Collective Bargaining Agreement (CBA), however, a CBA affects whether an accommodation is considered reasonable. For example, promotion provisions cannot be violated in the accommodation process. Employers must also be aware that a workers’ compensation Compromise and Release does not automatically release FEHA liability unless explicitly provided for this in the agreement.

If an employee files a claim with DFEH or EEOC, the employer will get a copy of the complaint and be required to respond to each allegation. The employee must cooperate fully and retain all written materials until the case is resolved. The entity will conduct the investigation, request documents, and interview whomever they deem relevant to the case. If the EEOC or DFEH find the complaint is substantiated, they will set the matter for conciliation. If not settled, the hearing will go to Superior Court. All evidence gathered by DFEH can be used in court if case goes to trial.

Employees may also request a right to sue letter so that they may proceed directly to civil court.

FEES AND FINES

Remedies include: back pay, out of pocket losses, affirmative relief, reinstatement, training requirements for the organization, damages, policy changes, emotional distress damages fees, administrative fines and fees limited to $150,000.00

Superior Court remedies include: an award, unlimited emotional distress, exposure to unlimited punitive and prevailing party may recover legal fees.

Each case should be treated and examined individually and this information should not be interpreted as final legal advice. Always consult your legal counsel when making a final decision pertaining to California labor laws, FEHA, ADA, FMLA and other leave options and related issues.

  1. California DFEH
  2. Barnett v.v U.S. Air (2000)
  3. Gambini v. Total Renal Care, Inc. (9th Cir. 2007) and Riehl v. Foodmaker, Inc. (Wash. 2d, 2007)

DISCLAIMER: The information and materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. This brief outline of your disability compliance obligations is designed to provide accurate and authoritative information in a highly summarized manner in regard to the subject matter covered on this website. They provide the reader / end user with the understanding that the publisher of this information is not engaged in rendering legal advice / services. If legal assistance is required, the services of competent legal professionals should always be sought.

CALIFORNIA FEHA REGULATIONS: Under both the ADA and the FEHA, “the interactive process requires communication and good faith exploration of possible accommodati

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