Your Company & Disability Law: Why California Businesses are at Higher Risk

By April 5, 2007Articles

2006 proved to be an intense year for law related to work-place disabilities.  While federal regulations remained relatively stagnant, California disability law became more strict, focused, and powerful.  The chasm between federal and California disability law began with the implementation of the California Fair Employment Housing Act (FEHA).  Despite the often conflicting news reports pertaining to changes in disability law, legal disputes in 2006 helped clarify the regulations established under FEHA.

Under current federal law, a more lax interpretation of “disabled” has been established, as the person must be substantially mentally or physically limited in one or more major life activities.  A substantial limitation makes the achievement of the activity “more difficult.”  California law, on the other hand, considers one disabled if they possess a mental or physical condition that in any way limits one or more of their major life activities.  California provides for a much wider spectrum of activities that qualify as “major life activities.”  Such activities include working, as well as social, mental, and physical activities. 

Federal law references a broad class of jobs in defining “major life activities.”  For example, if an employee endures a work-related back injury, federal law would outline a series of related jobs that interfere with the back injury such as lifting, turning, or standing for long periods of time.  Finally, under FEHA, a person can be “disabled” even if only limited in carrying out a single job. This strict labor law is due to the fact that California considers the “potential effect” of a disability, rather than just the “actual effect.”  Examples of disabilities that are recognized in California but not federal law include: hepatitis, multiple sclerosis, heart disease, HIV/AIDS, seizure disorders, and epilepsy. 

With that said, California employers have a stronger obligation to provide legally disabled employees with protection and attention.  Once a disability does cause an employee’s task to become more difficult, California employers should first attempt to make reasonable accommodations.  These accommodations must reflect whether the employee is inhibited from performing essential or nonessential job duties.  Under FEHA, if an employee is unable to carry out duties essential to their job and modification of duties is not a viable alternative, the employee may be terminated.  However, it should be noted that courts carefully look for any viable or possible alternatives when presented with disability-related cases.  For example, termination would be a necessary result if modifying the disabled employee’s task or tasks would pose a risk to another employee. 

If, however, a reasonable alternative does exist, it is recommended that the employer carefully document the nature of the disability in an initial meeting and how it inhibits the employee from carrying out his/her daily tasks.  During this meeting, the disability’s effects on essential versus non-essential job tasks should be outlined.  Thirdly, develop protocols to attempt to create a reasonable accommodation for the disabled employee.  This might lead to modification of the employee’s designated tasks.  Finally, meet again with the employee to discuss alternatives.  Again, the above activities should be carefully documented.

For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at (619) 525-7000 or

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