Working with a Disability: Your Rights as a Employee in California
With the passage of the Americans With Disabilities Act nearly three decades ago, employees working for covered employers gained protections from discrimination on the basis of their disability as well as assurances of the rights to accommodations for their disability. In California, the Fair Employment and Housing Act (FEHA) contains even stronger protections for disabled employees. Under state law, an employer may not refuse to hire or take an employee’s disabilities–real or perceived–into account during the application process. And once hired, the employer may also need to make certain requested “reasonable accommodations” to help the employee successfully perform their job in spite of their disability. Recently, these protections were extended further to provide that an employer has a duty to reasonably accommodate an applicant or employee who is associated with a disabled person who needs the employee’s assistance – like a parent who needs a flexible work schedule to care for a child with a disability.
So what exactly does FEHA mean by a “disability”? The law broadly encompasses a wide range of mental and physical impairments. In order to qualify as a disability, the impairment must “limit a major life activity,” such as the ability to see, hear, or walk, or in the case of a mental disability the ability to learn or communicate with others.
While potentially qualifying disabilities are many, here is just a sample of specific impairments identified in the FEHA:
- Missing limbs
- Mobility impairments that require the use of a wheelchair
- Heart disease
- Multiple sclerosis
- Mental illness
- Cognitive disability (aka “mental retardation”)
- Autism spectrum disorders
- Post-traumatic stress disorder
- Obsessive compulsive disorder
Also note that you may be considered a victim of disability discrimination even if you do not have a qualifying disability. FEHA also prohibits employers from taking adverse actions against an employee based on a “perceived disability,” i.e. the assumption that you may be limited in performing a major life activity based on inaccurate or complete information, such as a family genetic history.
In order to protect all job applicants from potential discrimination, California employers may not ask you questions during the interview process about the “nature or severity” of any impairment you may have. Nor can the employer requiring a pre-hiring medical or psychological exam, unless such tests are required for all applicants as a matter of policy. Additionally, the employer may ask specific questions regarding applicant’s “ability to perform job-related functions.”
As mentioned above, the FEHA requires employers to do more than just not fire (or refuse to hire) a disabled worker. The employer must also make any “reasonable accommodation” requested by a disabled employee. As with “disability,” there is no all-encompassing definition of what constitutes a reasonable accommodation. Some of the more common examples mentioned by the FEHA include:
- modifying existing facilities, such as restrooms and break rooms;
- permitting employees to use seeing-eye dogs or other “assistive animals” at work;
- allowing the employee to work in a different office or location;
- modifying the employee’s work schedule; and
- restructuring the “non-essential” functions of a particular job.
Under the law, the burden is on the employee to request a reasonable accommodation, but there is no magic language necessary to make that request. Once a request is made, the employer must engage in a “timely, good faith interactive process” to determine whether the request will be granted, or whether there is an alternate accommodation the employer could make. Ultimately, the employer may reject a requested accommodation that would impose an “undue hardship” on its business or the other employees.
While this is a general overview of how the FEHA addresses disability discrimination, each individual case must be examined on the merits, especially when it comes to reasonable accommodations. If you have any questions or concerns about how your employer–or prospective employer–has treated you under the FEHA, you should consult with an experienced California employment law or discrimination attorney.