The Fair Employment and Housing Commission (before being dissolved and replaced with the Fair Employment and Housing Council) issued new regulations with regard to disability discrimination. Employers with 5 or more employees are subject to California disability discrimination law. Generally these regulations incorporate existing statutory and case law changes.

The new regulations reflect the expansion of disability discrimination law to cover almost all medical conditions and to require that employers actively engage in the interactive process.

Generally, only very mild conditions (such as colds, common flu or non-migraine headaches) are excluded from the definition of disability. “Essential job functions” are very limited. It is important for the employer to have specific evidence of the essential job functions which can include: accurate, current, written job descriptions; documentation on the amount of time spent on the function; legitimate business consequences if the employee is not required to perform a function; and reference to the importance of a job function in prior performance reviews. [Many employers include “lifting” as an essential job function when it is not in many cases.]

An employer has an affirmative duty to make a reasonable accommodation unless the employer can show, after engaging in the interactive process, that the accommodation would impose an undue hardship on the employer. A “reasonable accommodation” must be effective in enabling the employee to perform the essential functions of the job. A leave of absence may be a reasonable accommodation.

An employer must assess on an individual case-by-case basis whether an employee can perform the essential functions of the job with or without a reasonable accommodation. An employer cannot impose an arbitrary “100 percent healed” policy before an employee may return to work. Employers should not have a policy that limits all leaves to a particular period of time, e.g., one year, because this would be contrary to an individualized, case-by-case assessment.

Engaging in the interactive process is a separate obligation of the employer, even if there is no reasonable accommodation available. The interactive process requires communication and good-faith exploration of possible accommodations between employers and employees.

What this means for you

Whenever an employee is unable to work or is looking to return to work as a result of any medical condition (whether work-related or not) an employer must engage in the interactive process with the employee to determine whether a reasonable accommodation is necessary and can be made. Employer policies on leaves of absence and return to work issues should be reviewed to ensure compliance with disability discrimination laws. For assistance in implementing these requirements, please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or