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New California Disability Regulations Emphasize Importance of Interactive Process

MSK Client Alert
February 13, 2013

On December 30, 2012, new disability discrimination regulations drafted by the now defunct California Fair Employment and Housing Commission (FEHC) became effective. These detailed regulations, codified at 2 Cal. Code Regulations Section 7293.5, et seq., adopt many of the standards set forth in the guidelines issued by the federal Equal Employment Opportunity Commission interpreting the Americans With Disabilities Act (ADA). However, in certain respects these regulations go further, underscoring both the breadth of the definition of a protected “disability” under California law and the scope of an employer’s duty to engage in the interactive process and accommodate persons with disabilities.

The new regulations also emphasize that the primary focus of disability discrimination law should be “whether employers…have provided reasonable accommodation to applicants and employees with disabilities, whether all parties have complied with their obligation to engage in the interactive process and whether discrimination has occurred, not whether the individual meets the definition of disability, which should not require extensive analysis.” While it is impractical to summarize all of the new FEHC regulations, employers should be aware of the following key provisions:


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Q: When should an employer and employee start the interactive process?

A: An employer must initiate the interactive process whenever it has reason to believe that an employee has a disability requiring accommodation. While, in many cases, the interactive process is triggered by an employee’s request for accommodation, the new regulations make clear that employer knowledge of the possible need for an accommodation may come from any source. Moreover, employers should document their efforts to engage in the interactive process and consider all potential accommodation options, whether or not requested by the employee.

Q: How much leave is reasonable?

A: Employers should weigh the “undue hardship” of extending a leave of absence on a case-by-case basis, considering, among other things, the impact of the leave on other employees, the size of the business, and the financial resources needed to cover the leave. Section 7293.6(r). Employers should be aware, however, that they have the burden of proof in establishing that providing leave constitutes an “undue hardship.”

Q: Do employees with disabilities get priority over other employees with more seniority or preferential consideration for vacant positions?

A: The regulations do not require the employer to ignore a seniority system, unless extenuating circumstance exist, such as if the employer’s policy or practice allows the employer to modify its seniority system. Section 7293.9(d)(5).

An employee with a disability is entitled to preferential consideration for a vacant position if the employee can no longer perform essential functions or his or her own position even with an accommodation, an accommodation from the employee’s own job creates an undue hardship, the employer and employee agree that the vacant position is preferable to an accommodation in the present job, or the employee requests medical care that is not easily accessible at the current location. However, the employee must be qualified for the position in order to receive preferential consideration. Section 7293.9(d)(1).

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