Disabilities in the Workpalce

Workplace Disabilities

You may face serious consequences if you discriminate against persons with disabilities in your employment decisions, or if you fail to make reasonable accommodation for an applicant’s or employee’s disability. In addition, if your business or property is open to the public, it almost certainly needs to meet certain accessibility standards created by federal and state law. Be aware that California laws and requirements create higher accessibility standards than federal law.

Laws Protecting Employees with Disabilities. Several state and federal laws protect employees with disabilities against discrimination. Employers must consider people with disabilities, both applicants and employees, as productive members of the workforce.

ADA and FEHA. Four state and federal laws protect employees with disabilities from discrimination: The Americans with Disabilities Act; the Americans with Disabilities Act Amendments Act of 2008; the Rehabilitation Act of 1973; and the Fair Employment and Housing Act, including regulations amended in 2012.

California law also prohibits discrimination against a person based on a medical condition. A medical condition includes any health impairment that is related to or associated with a diagnosis of cancer, a record or history of cancer and an individual’s genetic characteristics. Federal and state laws also prohibit discrimination based on genetic information. Employers should take note that the EEOC was particularly active in 2014 with respect to pursing disability discrimination claims.

The EEOC’s Strategic Enforcement Plan sets the agency’s national priorities for fiscal years 2013-2016. As part of that plan, the agency said it will focus on what it calls “emerging and developing” issues, which includes enforcing the Americans with Disabilities Act (ADA) and issues relating to coverage, reasonable accommodation, qualification standards, undue hardship and the direct threat defense.

The EEOC has stated that it is pursuing efforts to “reinvigorate the Americans with Disabilities Act” following the 2008 amendments to the ADA, which expanded protections to disabled employees and job applicants.

In the first few months of May 2014, 10 of the 22 lawsuits filed or settled by the EEOC involved disability discrimination. The EEOC’s lawsuits included charges that various employers violated the ADA by discriminating against a legally blind sales clerk because of his disability; firing an employee because the person suffers from human immunodeficiency virus (HIV); and refusing to provide reasonable accommodation to an EMT paramedic who has multiple sclerosis.

Federal Americans with Disabilities Act (ADA). The ADA prohibits employers of 15 or more employees from discriminating against qualified individuals with disabilities. The ADA also requires an employer to provide reasonable accommodation for a qualified applicant’s or employee’s known disability, unless it would impose undue hardship on the employer’s business, or unless the applicant or employee would cause a direct safety threat to others.

The ADA also states that no person can be discriminated against or prevented from equal enjoyment of goods, services, facilities and accommodations of any place that serves the public because he/she is disabled. This includes hotels, restaurants, theaters, retail sales service establishments and any other place of employment or public access. The ADA requires these places to be physically accessible to people with disabilities.

Federal Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The ADAAA made changes to the definition of “disability” and rejected several U.S. Supreme Court decisions and portions of the EEOC’s ADA regulations. The changes were designed to make it easier for an individual who brings ADA claims to establish a disability. The ADAAA clearly stated that under federal law, the definition of “disability” will be construed in favor of broad coverage.
The amended ADA regulations also require:

Nondiscrimination on the basis of disability in state and local government services (Title II).
Nondiscrimination on the basis of disability by public accommodations and in commercial facilities (Title III).
Service animals limited to dogs and miniature horses. Emotional support animals are not considered service animals.

Federal Rehabilitation Act of 1973. The Rehabilitation Act of 1973 covers employers with federal government contracts of $2,500 or more. It also covers employers who receive federal financial assistance. The Rehabilitation Act of 1973 is similar to the ADA.

California Fair Employment and Housing Act (FEHA). FEHA covers employers of five or more employees and requires employers to reasonably accommodate people with disabilities. FEHA provides greater protection from disability discrimination than the ADA. For example, under FEHA, a person is considered disabled if he/she is “limited” in one or more of the major life activities, rather than “substantially limited” in those activities as required under the ADA.5

AIDS and HIV-positive status are considered protected disabilities under the federal ADA and state FEHA.

Private membership clubs (other than labor organizations) exempt from taxation by the Internal Revenue Code (IRC) section 501(c) also enjoy an exemption from the ADA. However, such organizations are not exempt from the disability discrimination provisions of FEHA, unless they are religious, nonprofit organizations.

California treats AIDS and HIV-positive status as a disability. Individuals with AIDS and HIV-positive status are protected. In addition, these individuals can sue based on other forms of employment discrimination, invasion of privacy, defamation and AIDS-specific statutes that provide employees with legal recourse.

California Amended Disability Regulations. California’s Fair Employment and Housing Commission adopted Modified Amended Disability Regulations (Amended Disability Regulations). The regulations, adopted in late 2012, significantly changed disability law in California, expanding the definition of disabilities in California and clarifying employers’ obligations to reasonably accommodate qualified individuals.

California’s Amended Disability Regulations prohibit discrimination based on perceived disabilities or perceived potential disabilities. The regulations also require accommodation for the residual effects of disabilities. The regulations provide guidance regarding the interactive process and medical documentation.