Q: I understand there have been some changes to the law governing the rights of employees with disabilities in the workplace. Can you tell me something about it? P.S.: My business is in California.
A: You are probably referring to a state Supreme Court ruling earlier this year that leaves no doubt that California employers must comply with a state law (AB 2222) addressing employees with disabilities. That law, which first went into effect in 2001, expands the definition of disability beyond federal standards.
The law makes it illegal for a company with more than five employees to discriminate because of a physical or mental disability or medical condition. It broadened the definition of disability in several ways and has resulted in many more employees qualifying as disable under the state’s Fair Employment and Housing Act.
While the U.S. Americans with Disabilities Act defines a “disability” as a physical or mental condition that “substantially limits” a “major life activity,” AB 2222 changes the definition of disability in California to any condition that merely “limits” a major life activity. Q: Can I require potential employees to undergo medical or psychological exams? A: No, before making a job offer to an applicant, employers cannot demand that the applicant take a medical or psychological exam, ask if the applicant has a mental or physical disability or medical condition, or ask about the nature or severity of a physical or mental disability or medical condition.
Employers may, however, ask about the ability of the applicant to perform job-related functions. Q: What can I ask applicants after a job offer has been made and what can I ask existing employees? A: Employers may require applicants to take a medical or physhological exam or they can make a medical or psychological inquiry, but only if the exam or inquiry is job related and consistent with business necessity and all people entering the same job classification are subject to the same exam or inquiry.
Employers may require a medical or psychological exam of employees, or make an inquiry, only if the exam or inquiry is job related and consistent with business necessity. Q: Aside from illnesses such as cancer and other diseases, and obvious physical disabilities, are there other medical conditions that fall under AB 2222? A: HIV/AIDS, hepatitis, seizure disorder, diabetes, clinical depression, bipolar disorder, Multiple Sclerosis and heart disease are now considered disabilities.
Specifically excluded from the definition of mental disability are sexual behavior disorders, compulsive gambling, kleptomania, pyromania or psychoactive substance abuse disorders resulting from the unlawful use of illegal or controlled drugs. Q: As an employer, am I obligated to look for ways to accommodate an employee or applicant with a physical or mental disability? A: An employer is required by law to engage in a timely, good-faith dialogue – if an employee or job applicant requests it – to determine what reasonable accommodations can be made.
As part of the discussions, employers should analyze the job and determine its essential functions. They should document the process.
Employers should also identify potential accommodations and assess their effectiveness in enabling an employee to perform the essential job functions. The employer should further consider the employee’s preference and select the accommodation most appropriate for both the employee and employer.