In California, employees enjoy very broad rights to recover from even transitory disabling injuries or conditions. Today as never before in view of the pandemic scourge sweeping across Los Angeles and Orange County and the State of California some workers will need accommodations to protect them from injury. Older workers with underlying conditions or other workers with diabetes or asthma and so on may need accommodations in the workplace to stay healthy and protected. These “disabilities” must be accommodated through a process of interactive dialogue. One form of accommodation is medical leave, and often the medical leave begins when the FMLA/CFRA leave ends. For an explanation of this point, the term “disability” is so inclusive under California law that it is almost misleading. Moreover, the term “disability” is far broader than what most California employees would assume. Forget about the idea that you have to be confined to a wheel chair or some such condition in California to be deemed disabled within the meaning of the law. The regulations provide for mental and physical disabilities. Indeed, the regulations provide very broad definitions of “Mental Disability”, “Physical Disability”, “Special Education” disability, and “Perceived Disability”. Let’s review these:
A Mental Disability includes, but is not limited to:
having any mental or psychological disorder or condition that limits a major life activity. “Mental disability” includes, but is not limited to, emotional or mental illness, intellectual or cognitive disability (formerly referred to as “mental retardation”), organic brain syndrome, or specific learning disabilities, autism spectrum disorders, schizophrenia, and chronic or episodic conditions such as clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder.
Note that the regulation specifically names, among other conditions, “clinical depression” and “post traumatic stress disorder”. But it also embraces ANY emotional or mental illness or conditions that simply “limit a major life activity.” Working is regarded as a “major life activity” and often stress, particularly a diagnosis of severe anxiety, can “limit a major life activity” i.e., work. Moreover, the regulations further provide that “An impairment limits a major life activity if it makes the achievement of the major life activity difficult.” So even a panic or anxiety disorder, if it makes work more difficult, would constitute a “disability” within the meaning of California law.
A Physical Disability ““includes, but is not limited to, having any anatomical loss, cosmetic disfigurement, physiological disease, disorder or condition that does both of the following:
(A) affects one or more of the following body systems: neurological; immunological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; circulatory; skin; and endocrine; and
(B) limits a major life activity.
What does that mean? Well, a leading treatise has observed, “ Because the FEHA requires only a “limitation” (not a “substantial limitation”) on a major life activity, individuals with short-term or temporary conditions may qualify for protection under the FEHA though the same condition likely would not qualify under the ADA. [See Diaz v. Federal Express Corp.(CD CA 2005) 373 F.Supp.2d 1034, 1051-1052—unlike ADA, FEHA has no durational requirement for evaluation of whether condition constitutes disability]” So a bad back, or a broken ankle, or high blood pressure, or even migraine headaches each may be “disabilities” within the meaning of California law, as well as the more expected instances of heart disease, multiple sclerosis, seizure disorder or palsy.
What if an employer believes you to be disabled because you were at one time, or because he believes you will be in the future? That is against the law as well, even if there is no present disabling effect. The regulations state: A “perceived potential disability” includes being regarded, perceived, or treated by the employer or other covered entity as having, or having had, a physical or mental disease, disorder, condition or cosmetic disfigurement, anatomical loss, adverse genetic information or special education disability that has no present disabling effect, but may become a mental or physical disability or special education disability.
Moreover, a Perceived Disability:
means being “regarded as,” “perceived as” or “treated as” having a disability. Perceived disability includes:
(A) Being regarded or treated by the employer or other entity covered by this article as having, or having had, any mental or physical condition or adverse genetic information that makes achievement of a major life activity difficult; or
(B) Being subjected to an action prohibited by this article, including non-selection, demotion, termination, involuntary transfer or reassignment, or denial of any other term, condition, or privilege of employment, based on an actual or perceived physical or mental disease, disorder, or condition, or cosmetic disfigurement, anatomical loss, adverse genetic information or special education disability, or its symptom, such as taking medication, whether or not the perceived condition limits, or is perceived to limit, a major life activity.
(6) A “perceived potential disability” includes being regarded, perceived, or treated by the employer or other covered entity as having, or having had, a physical or mental disease, disorder, condition or cosmetic disfigurement, anatomical loss, adverse genetic information or special education disability that has no present disabling effect, but may become a mental or physical disability or special education disability.
At The Rubin Law Corporation, our disability discrimination attorneys know that the weight of being discriminated is felt in every aspect of your life.
For this reason, we take aggressive action to preserve your rights, including the right to work in an environment free from discrimination. We serve clients in Los Angeles, Irvine, San Diego and the entire state of California region. Contact us online or call 310-385-0777 today to learn more about how the new disability regulations apply to your circumstances.
Los Angeles lawyers, advising on the new disability regulations
Often times you will hear about an “accommodation” of work restrictions or disabling conditions. What does that mean, you may ask….? The regulations provide some answers:
“Reasonable accommodation” is:
(1) modifications or adjustments that are:
(A) effective in enabling an applicant with a disability to have an equal opportunity to be considered for a desired job, or
(B) effective in enabling an employee to perform the essential functions of the job the employee holds or desires, or
(C) effective in enabling an employee with a disability to enjoy equivalent benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.
(2) Examples of Reasonable Accommodation. Reasonable accommodation may include, but are not limited to, such measures as:
(A) Making existing facilities used by applicants and employees readily accessible to and usable by individuals with disabilities. This may include, but is not limited to, providing accessible break rooms, restrooms, training rooms, or reserved parking places; acquiring or modifying furniture, equipment or devices; or making other similar adjustments in the work environment;
(B) Allowing applicants or employees to bring assistive animals to the work site;
(C) Transferring an employee to a more accessible worksite;
(D) Providing assistive aids and services such as qualified readers or interpreters to an applicant or employee;
(E) Job Restructuring. This may include, but is not limited to, reallocation or redistribution of non-essential job functions in a job with multiple responsibilities;
(F) Providing a part-time or modified work schedule;
(G) Permitting an alteration of when and/or how an essential function is performed;
(H) Providing an adjustment or modification of examinations, training materials or policies;
(I) Modifying an employer policy;
(J) Modifying supervisory methods (e.g., dividing complex tasks into smaller parts);
(K) Providing additional training;
(L) Permitting an employee to work from home;
(M) Providing a paid or unpaid leave for treatment and recovery, consistent with section 11068(c);
(N) Providing a reassignment to a vacant position, consistent with section 11068(d); and
(O) other similar accommodations.
The regulations have also expanded the definitions and guidance regarding:
- Major life activities
- Essential job functions
- Medical conditions
- Genetic characteristics
- Interactive dialogues
Further, according to the new regulations, the employer has the responsibility of initiating a discussion with the employee about reasonable accommodations when they learn of his or her disabling condition. All information must be kept strictly confidential.
Our disability discrimination attorneys will help you to understand the new disability regulations to make sure that you are reaping the benefits of the protections they provide.
Contact the Rubin Law Corporation today
Contact the employment lawyer of The Rubin Law Corporation by calling 310-385-0777 or 888-317-9026 FREE to schedule a confidential consultation to discuss how disability regulations; you can also e-mail us. Know your rights as an employee. As experienced Los Angeles disability discrimination.