New Regulations Released Governing Disability Discrimination in California

03.27.2013
Nossaman eAlert

As we recently reported during our 2013 Emerging Employment Law Seminar,  the California Fair Employment and Housing Commission (FEHC) implemented new and amended regulations governing disability discrimination, reasonable accommodation, and the interactive process under the California Fair Employment and Housing Act (FEHA) (2 Cal. Code Reg. Sections 7293.5 et seq.).   The regulations emphasize that employers must engage in a prompt, good faith interactive process in order to reduce the risk of liability.  Key provisions of FEHC’s new disability regulations include:

  • The regulations assume that individuals have a disability
  • Dogs will join the workforce
  • Employers must keep job descriptions up to date
  • Performance reviews can help establish essential job functions
  • Employees must show that leaves likely will be effective in allowing the employee to return to work within a reasonable time period
  • Making a light duty position permanent is not a reasonable accommodation
  • Lowering quality or quantity standards is not a reasonable accommodation
  • Employers must exclude leave time for productivity and bonus purposes
  • The employee must establish the effectiveness of the accommodation sought
  • The employer can assert safety and health defenses only if the employer has engaged in the interactive process
  • Employers may not ask about the specific underlying medical condition
  • Medical marijuana use is not protected
  • Employers must implement an interactive process
  • Notice to engage in interactive process
  • The employer need not implement the employee’s preferred accommodation
  • The employer must separate and keep confidential interactive process medical information

Be sure to update your employee handbook and policies and procedures to reflect these recent changes.

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