Employers in California must comply with a new set of rules that go above and beyond what the federal Americans with Disabilities Act requires.
While ADA and its regulations do not explicitly require employers to participate in the interactive process of finding an appropriate accommodation for an employee with a disability, a failure to do so is often considered evidence of discrimination. In California, however, a failure to participate in the process is a violation itself.
New state regulations require that employers in the state participate:
When needed to identify or implement an effective, reasonable accommodation for an employee or applicant with a disability, the [Fair Employment and Housing Act] requires a timely, good faith, interactive process between an employer or other covered entity and an applicant, employee, or the individual’s representative, with a known physical or mental disability or medical condition. Both the employer or other covered entity and the applicant, employee or the individual’s representative shall exchange essential information identified below without delay or obstruction of the process. (2 Cal. Code Reg. §7294.0(a))
The regulations also go above and beyond their federal counterpart in defining the events that trigger the employer’s obligation to begin the interactive process. Like ADA, California regulations consider an employer “on notice” of the need for an accommodation when an employee requests one or when the employer becomes aware of the possible need through a third party or by observation.
However, California employers also must begin the interactive process when an employee with a disability “has exhausted leave under the California Workers’ Compensation Act, for the employee’s own serious health condition under the [California Family Rights Act] and/or the [Family and Medical Leave Act], or other federal, state, employer or other covered entity leave provisions and yet the employee or the employee’s health care provider indicates that further accommodation is still necessary for recuperative leave or other accommodation for the employee to perform the essential functions of the job.” (2 Cal. Code Reg. §7294.0(b)(3))
The new rules also require California employers to:
- allow emotional support animals in the workplace as a reasonable accommodation;
- keep their job descriptions up to date if they wish to use them to show that a job function is essential; and
- refrain from asking about a disability’s underlying medical condition.
A full description of the changes is available in the ADA Compliance Guide, at http://hrcomplianceexpert.com.