Pocket Guide to Disability Discrimination in the California Workplace Public and Private Sectors

$27.00

By M. Carol Stevens et al.
4th edition, 2017

Description

Disabled California workers and their representatives generally turn to two statutes to remedy workplace disability discrimination: the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). This guide covers both, as well as Equal Employment Opportunity Commission and Department of Fair Employment and Housing regulations implementing the acts. It informs employers about their responsibilities under the relevant laws.

The new edition includes up-to-date information concerning:

  • Similarities and differences between the FEHA and the ADA, including a chart that compares the key provisions of the laws
  • References to the text of the law and the enforcing agencies’ regulations that implement the statutory requirements
  • A discussion of other legal protections afforded disabled workers, such as the federal Rehabilitation Act of 1973, the federal Family and Medical
  • Leave Act and corresponding California Family Rights Act, and workers compensation laws
  • Major court decisions that interpret disability laws

The guide is a valuable reference and training tool, and helpful to anyone who needs to understand disability discrimination laws that apply in both the public and private sectors in California.

M. Carol Stevens, currently the executive director of CALPELRA, has practiced employment and labor relations law for public agencies in California since 1978. One of the leading legal practitioners in the field of public employment law, Stevens advises employers in nearly all facets of labor relations and employment litigation. She has represented public employers in grievance and interest arbitrations, PERB proceedings, state/federal courts, and other administrative procedures. Stevens is well known for creatively resolving difficult and complex labor relations disputes.

This edition of the disability discrimination guide was revised by Katy Suttorp and Kelly Trainer, partners at Burke, Williams and Sorensen, LLP, who were contributing authors to the 2011 and 2015 editions as well. Both Suttorp and Trainer are based in Burke’s Orange County office, and represent public and private sector employers in all aspects of labor and employment law, including disability discrimination, the interactive process, harassment, leaves of absence, PERS/STRS, and employee discipline. Both also serve as labor negotiators and workplace investigators, and are frequent lecturers on a variety of labor and employment law matters.

Coauthors Sheila Delshad, and Malaika Billups, are associate attorneys with Burke, Williams & Sorensen’s employment law group.

Table of Contents
I. Introduction 1
II. How Do the FEHA and ADA Compare? 4
III. Which Employers Do the Laws Cover? 22
    A. Which Employers Does the FEHA Cover? 22
    B. Which Employers Does the ADA Cover? 23
IV. Whom Do the Disability Laws Protect?  25
V. What Are Covered Disabilities Under the Laws?  27
    A. What Is the Definition of “Disability” Under the FEHA? 27
        1. What Are Major Life Activities Under the FEHA? 30
            a. Is working a major life activity under the FEHA? 30
        2. When Does a Physical or Mental Condition Limit a Major Life Activity Under the FEHA?  31
            a. Does the FEHA consider mitigating measures in determining whether a major life activity is limited?  31
            b. Does the FEHA recognize impairments that are temporary as capable of limiting a major life activity?  32
    B. What Is the Definition of Disability Under the ADA?  33
        1. What Is a “Physical or Mental Impairment” Under the ADA?  36
        2. What Is a “Major Life Activity” Under the ADA? 38
            a. Is working a major life activity under the ADA?  40
        3. How Does an Impairment “Substantially Limit” a Major Life Activity Under the ADA?  42
    C. When Do the Laws Protect Persons Who Not Have an Actual Disability, and Never Have?  49
        1. Regarded as Having a Disability 49
        2. Associates of Disabled Individuals 51
        3. Other Individuals 51
VI. What is an Essential Function and Its Impact on”Working”?  53
    A. How Does Protection Under the Laws Depend on a Person Being “Qualified”?  53
    B. How Do the Laws Define “Essential Functions” or Purposes of Determining Whether an Individual Is “Qualified”? 58
VII. What Is the Employer’s Obligation to Engage in the Interactive Process and Provide Reasonable Accommodation?  59
    A. Does the Employee Require “Reasonable Accommodation”?  59
    B. When Must Employers Engage in an Interactive Process?  67
    C. Is a Public Sector Employee Entitled to Union Representation During the Interactive Process?  69
    D. What Medical Information May Employers
Request in an Interactive Process?
 70
    E. How Should Employers Identify Possible Accommodations in an Interactive Process?  72
    F. When May Employers Refuse to Accommodate an Employee?  75
VIII. What Other Obligations Do Employers Have in Complying with Disability Discrimination Laws? 79
    A. What Obligations Does the ADA Impose on Employers?  79
    B. What Obligations Does the FEHA Impose on Employers?  80
    C. What Practices Do the Laws Regulate During the Pre-Employment Process?  81
        1. Job Announcements and Job Training Programs  81
        2. Administering Tests and Accommodating Test-Takers  83
            a. Physical agility tests  83
            b. Drug tests  83
        3. Pre-Employment Medical Exams and Inquiries  85
            a. What questions may employers ask job applicants?  86
            b. What limitations do employers have in making medical inquiries and requiring medical examinations for applicants?  88
        4. Confidential Medical Files  89
    D. What Practices Do the Laws Regulate During Employment?  90
        1. Work Rules  90
        2. Drug Use  92
        3. Alcohol Use  96
        4. Workplace Rules Regarding Substance Abuse  97
        5. Employee Medical Exams and Inquiries  98
        6. Retirement and Health Care Plans 99
            a. Retirement plans  99
            b. Medical plans 100
            c. Safe harbor 101
    E. What Post-Employment Obligations Do the Laws
Impose?
102
    F. What Other Practices Do Disability Discrimination Laws Prohibit? 102
        1. Coercion 103
        2. Harassment 104
        4. Retaliation 107
IX. How Are Disability Discrimination Laws Enforced? What Remedies Are Available? 110
    A. How Are FEHA and ADA Discrimination Protections Enforced? 110
        1. What Are the Administrative Prerequisites to Bringing a Disability Discrimination Lawsuit? 110
        2. When May Disability Discrimination Claims Be Subject to Arbitration? 115
        3. Who May Bring a Disability Discrimination Lawsuit? Who Can Be Sued? 119
        4. What Defenses May Employers Invoke? 122
            a. Direct threat 122
            b. Food handlers 124
            c. Conflicting federal laws and regulations 129
            d. Smoking 129
            e. Employer’s conduct has a legitimate, non-discriminatory basis 130
    B. What Remedies Are Available to Persons Who Experience Unlawful Discrimination? 133
        1. ADA Damages 133
        2. FEHA Damages 136
        3. GINA Damages 137
X. What Other Laws Protect Disabled Employees? 138
    A. ADA Titles II and III 138
    B. The Rehabilitation Act of 1973 140
    C. The Federal Family and Medical Leave Act (FMLA)
and California Family Rights Act (CFRA)
141
        1. Coverage and Eligibility 142
        2. Medical Information 143
        3. Conclusion of Leave and Return to Work 143
        4.  Pregnancy Leave 145
    D. The Healthy Families, Healthy Workplaces Act of 2014 146
    E. Workers’ Compensation 146
    F. Wrongful Discharge in Violation of Public Policy 150
    G. Confidentiality of Medical Information Act 151
    H. Genetic Information Nondiscrimination Act 152 151
XI. Table of Cases 152