California’s New Disability Regulations: Clarifying the Interactive Process

In October 2011, the California Fair Employment and Housing Commission (FEHC) proposed amended regulations governing disability discrimination, reasonable accommodation, and the interactive process under the California Fair Employment and Housing Act (FEHA).

After public comment and some revisions, the agency’s regulations became effective December 30, 2012. These regulations clarify an employer’s obligations to provide reasonable accommodation. The regulations also emphasize that employers must engage in a prompt, good faith interactive process in order to reduce the risk of liability. The regulations may be found at 2 Cal. Code Reg. Sections 7293.5 et seq.

The FEHC claims that the accommodations prompted by these regulations will only cost $150 per accommodation. Given the regulations’ scope, the FEHC’s estimate seems wildly optimistic.

Employers also should be aware that the Equal Employment Opportunity Commission (EEOC) in its new Strategic Enforcement Plan has stated explicitly that it intends to focus on disability issues, including reasonable accommodation, undue hardship, and the direct threat defense.

Highlights from the FEHC’s new disability regulations include:

The regulations assume that individuals have a disability. The regulations make clear in the Statement of Purpose that employers should focus on engaging in the interactive process and providing a reasonable accommodation. “[T]he primary focus in cases brought under the FEHA should [not] be . . . whether the individual meets the definition of disability, which should not require extensive analysis.” Section 7293.5(b). In short, the agency will focus on whether the employer reasonably accommodated the employee and not on whether the employee actually had a medical condition that falls within the statutory definition of disability.

Dogs will join the workforce. Employers should be prepared to welcome dogs and other animals into the workplace. The regulations specifically mandate that employers may have to allow “assistive animals” into the workplace as a reasonable accommodation. Section 7293.6(p)(2)(B). Assistive animals include not only “guide” and “signal” dogs for the visually and hearing impaired but also “support” animals that provide emotional support to individuals with disabilities such as depression. Section 7293.6(a)(1)(D).

If an employee asks to bring an assistive animal to work as a reasonable accommodation, the employer is entitled to a letter from the employee’s health care provider both confirming the existence of a disability and explaining why the presence of the animal in the workplace is necessary to allow the employee to perform his or her essential job functions. Section 7294.0(e)(1).

Employers must keep job descriptions up to date. In its Initial Statement of Reasons explaining the FEHC’s reasoning for amending the existing regulations, the FEHC expressed concern that employers presently use inaccurate, out-of-date job descriptions to undermine reasonable accommodation claims. To deter such conduct, the regulations stipulate that employers can rely only on “accurate, current job descriptions” as evidence that a job function is essential. Section 7293.6(e)(2)(B). 

Performance reviews can help establish essential job functions. Employers also can rely on “[r]eference[s] to the importance of the performance of the job function in prior performance reviews.”  Section 7293.6(e)(2)(H). As the Initial Statement explains, “The [FEHC] believes that such references in performance reviews will give a more realistic view of evolving job functions actually performed by an employee than a job description written years before.”

Employees must show that leaves likely will be effective in allowing the employee to return to work within a reasonable time period. Employers may have to provide leaves of absence for treatment and recovery as a reasonable accommodation. Section 7293.6(p)(2)(M). However, the regulations imply and the Initial Statement expressly states that the employee has the burden of showing that the leave is “likely to be effective in allowing the employee to return to work at the end of the leave, with or without further accommodation.” Section 7293.9(c).

The FEHC explicitly rejected a “bright line” test of how much leave is too much, preferring to rely on “undue hardship” on a case-by-case basis as the determining factor. The regulations acknowledge that an employer need not provide indefinite leave. Section 7293.9(c).

Making a light duty position permanent is not a reasonable accommodation. The regulations clarify that creating a new position for a statutorily disabled employee is not a reasonable accommodation. Section 7293.9(d)(4). In adding this section, the FEHC relied on case law holding that an employer need not transform a temporary light duty position into a permanent one.

Lowering quality or quantity standards is not a reasonable accommodation. The regulations clarify that an employer need not lower quality or quantity standards as a reasonable accommodation. The employer, however, maintains its obligation to reasonably accommodate the employee to meet its standards.

Employers must exclude leave time for productivity and bonus purposes. Although an employer need not lower its quality or quantity standards, the FEHC in its Initial Statement of Reasons takes the position that any leave time taken must be excluded from assessing productivity. Similarly, the employer must exclude the leave time in distributing bonuses based on productivity.

The employee must establish the effectiveness of the accommodation sought. The regulations recognize that the employee bears the burden of establishing that he or she is a “qualified individual with a disability.” This means that the employee must show that he or she can perform the position’s essential functions with or without accommodation. Section 7293.7(a). If the employee is a qualified individual with a disability, the employee need only show that the disability was a factor, not the sole or dominant one, in the adverse employment action. Section 7293.7(b).    

The employer can assert safety and health defenses only if the employer has engaged in the interactive process. The regulations also recognize that employers legitimately can defend themselves by showing that no accommodation exists that would allow the employee to perform the position’s essential functions without imposing an “imminent and substantial degree of risk” to the employee or others.

However, the FEHC takes the position that an employer forfeits these defenses if the employer has not engaged in the interactive process. Section 7293.8(b),(c).

Employers may not ask about the specific underlying medical condition. The Initial Statement and the regulations make it clear that the FEHC is adamant that an employer cannot ask for medical information that identifies the underlying disability. Section 7294.0(c)(2),(3); 7294.0(d)(1). The FEHC states that it believes that such a prohibition is consistent with California’s medical privacy laws, including the California Family Rights Act’s (CFRA) prohibition against disclosure of the underlying “serious health condition.” The FEHC also expressed concern about the stigma associated with certain conditions.

This prohibition may make it much more burdensome for an employer to establish a safety or health defense. An employer will find it more difficult to assess risks to health and safety if it does not know the underlying condition.

Medical marijuana use is not protected. Consistent with a California Supreme Court decision, the regulations hold that “[a]n applicant or employee who currently engages in the use of . . . medical marijuana is not protected as a qualified individual under the FEHA .”  Section 7294.2(d)(2)(A).          

Employers must implement an interactive process if they want to survive litigation. The regulations repeatedly stress the importance of the interactive process and include a lengthy section explaining and detailing the interactive process. Employers that fail to engage in a prompt, good faith, documented interactive process will find themselves at a substantial disadvantage in administrative and court proceedings.

Although employers should be familiar with all of the interactive process regulations, the section’s topics include the following:

Notice to engage in interactive process. An employer obtains notice to engage in the interactive process when an employee asks for such and/or when the employer becomes aware of the need for accommodation through a third party or the employer’s own observation.

An employer also can become aware of the need to engage in the interactive process when an employee has exhausted protected leave under the CFRA or Family and Medical Leave Act and the employee’s health care practitioner indicates that further leave and/or other accommodations are necessary. Section 7294.0(b)(3).

The employer need not implement the employee’s preferred accommodation. Although an employer must “consider” the employee’s preferred accommodation and, in fact, give it first consideration, the employer is free to implement another effective accommodation. Section 7294.0(c)(8).

The employer must separate and keep confidential interactive process medical information. The employer must keep any medical information that it obtains through the interactive process confidential and separate from the personnel file. Section 7294.0(g).