Disability and Reasonable Accommodations under the American with Disabilities Act & the Fair Employment and Housing Act

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The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) protect disabled employees from discrimination, harassment and retaliation. The acts require employers to reasonably accommodate known disabilities of their employees to enable them to perform the essential functions of their jobs. The accommodations are required unless their implementation would cause undue hardship to the employer. Employees who associate with someone who has a disability are protected too.

The ADA applies to all employers with 15 or more employees. The FEHA applies to all California employers with five or more employees.

California law is broader than the ADA, and employers must follow the law that provides the greatest benefit to employees.

Employees who contract COVID-19 may be considered disabled if their condition meets certain criteria and would be subject to the protections provided by the acts. In light of associational discrimination, employees might be protected if they are caring for a family member with the illness. Employers must consider their obligations under the ADA and the FEHA when making decisions about employees' return-to-work and leave requests, and requests for accommodation.

Detailed discussions of the FEHA and the ADA can (and do!) fill volumes. The legal issues and applications likewise are vast, often nearly incomprehensible and beyond the scope of this guide. So what follows is a discussion of the most fundamental elements of the laws, and, in the next section, answers to the most frequently asked questions about them. We anticipate expanding the discussion frequently.

For more information, contact us and consult https://www.dol.gov/general/topic/disability/ada and https://www.dfeh.ca.gov/employment/. Many of the issues also are covered extensively in "Sullivan on Comp Chapter 11: Return To Work .

DISABILITY DEFINED

In California, a person is considered disabled if she or he:

1. has a physical or mental impairment that limits one or more of the major life activities;
2. has a record of an impairment;
3. is regarded as having an impairment;
4. is regarded or treated by the employer as having a condition that is not presently disabling, but might become a disability; and/or
5. has a health impairment that requires special education or related services.

The FEHA protects people with transitory impairments whose nature and severity limit a major life activity. COVID-19 is believed to be a transitory illness that might fall within the act’s definition of disability, if it limits the major life activity of working.

According to the FEHA, the term “major life activities” is to be broadly construed and includes physical, mental, social and employment-related activities.

Given California’s stated intent to broadly define disability, employers should seek counsel when determining the disability status of an employee with COVID-19 who is unable to work.

RECORD OR HISTORY OF DISABILILTY

In addition to protecting individuals who have known disabilities, the FEHA prohibits discriminating against individuals with a “record of” a disability, who are “regarded as” disabled, who are “perceived as” disabled and who are “perceived as potentially” disabled.

California’s disability regulations state that a “record or history of disability” includes previously having, or being misclassified as having, a record or history of a mental or physical disability of which the employer or other covered entity is aware..

Employees who have recovered from COVID-19, were exposed to it and self-quarantined or had a family member with the illness, are protected under the FEHA even if the illness doesn’t reach the level of a disability.

SEE ALSO

• California Resources: Unemployment and Disability Insurance, Paid Family Leave, Paid Sick Leave
• FAQs: Disability and Reasonable Accommodations

REFERENCES

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< City and County Orders Applicable to Large Employers	Table of Contents	FAQs: Disability and Reasonable Accommodations >