State Law Redefines Who Has Disability

While new U.S. ergonomics rules have raised the ire of employers, a disabilities law that quietly passed the state Legislature will greatly expand the range of protected workers and could force major changes in California workplaces.

Assembly Bill 2222 is designed to distinguish California protections as intentionally stronger than those afforded by the Americans with Disabilities Act and its subsequent interpretation by the U.S. Supreme Court.

Employer groups already have filed lawsuits to fight the enforcement of new federal ergonomics standards, but the California law that goes into effect Monday faced little opposition in the Legislature and has triggered no such preemptive action.

It protects from employment discrimination people with a wide range of impairments and medical conditions that some courts have held are not covered by the ADA, including HIV infection, AIDS, hepatitis, epilepsy, seizure disorders, diabetes, clinical depression, bipolar disorder, multiple sclerosis and heart disease.

“It’s very significant because it deviates from the way the U.S. Supreme Court has been interpreting the Americans with Disabilities Act,” said attorney David Kadue, a partner in Seyfarth Shaw law firm’s Century City office.

“This new definition is going to reverse the trend we’ve seen in disability cases of employers being very successful in getting summary judgments,” Kadue said. “Eighty percent are thrown out on summary judgment. With the new definition, it’s going to be much more difficult to get cases dismissed.”

The new law is likely to generate lawsuits and “potentially increases the burden on [the] employer,” said Larry Shapiro, publisher of the California Employee Advisor Newsletter.

Patricia Yeager, executive director of the California Foundation for Independent Living Centers, said such criticism is predictable.

“My experience with employers is anything they don’t want to do is a burden,” Yeager said. “Employers look at people with disabilities as a burden, period. So I don’t have much sympathy for them.”

Jo Anne Frankfurt, an administrative law judge and lawyer with the state Fair Employment and Housing Commission, said the law, named after the late Prudence K. Poppink, a fellow administrative law judge, “is a fairly substantial bill. There’s no question about that.”

But, Frankfurt said, it is largely a recapitulation of existing California protections for the disabled, which have always been greater than those at the federal level.

“Both the courts and the public have been confused about the relationship between the Americans with Disabilities Act and the California Fair Employment and Housing Act, and the Prudence K. Poppink Act was passed to clarify some of that confusion,” Frankfurt said.

“The confusion was most apparent in the court cases,” she said. “You’d see some courts applying the ADA definition of disability when they have a state case in front of them. You’d have other courts relying only on state law when deciding a state case. The Prudence K. Poppink Act makes it clear you should rely on state law when deciding a state case, except when the ADA provides more protections for people with disabilities.”

One key difference between the federal ADA and the new state law is the definition of a disability. The ADA says a disability is an impairment that substantially limits a major life activity; the state law does not include the word “substantially.”

Frankfurt said California has never used the word “substantial.” But employer lawyers said the lack of that word in this law could require major changes in the workplace.

“To use a common case, carpal tunnel syndrome, that can be an annoyance and can limit certain activities,” Kadue said. “But courts have pretty generally held that in its mild forms it is not a disability because it doesn’t substantially limit major life activities. Now, there’s a greater chance for something like mild carpal tunnel to qualify as a disability.”

Under California law and the ADA, employers are required to make an effort to accommodate people with disabilities.

If carpal tunnel is treated as a disability, for example, the new law would require the employer to work with the employee to come up with a way to allow him to perform his job, such as a redesigned workstation, Kadue said.

The new law also asserts the primacy of California’s definition of a disability over the U.S. Supreme Court’s interpretation of the federal ADA.

In a trilogy of recent cases, the high court held that correctable impairments, such as nearsightedness, are not considered a disability. In one of the cases, the court held that United Airlines was not required to hire myopic applicants as pilots, and that the bespectacled plaintiffs had not been the victims of disability discrimination.

Frankfurt said the new California law reflects the Legislature’s disavowal of that analysis.

“It makes it clear that the intent of the California Legislature is that courts determine whether a condition limits a major life activity ‘without respect to any mitigating measures . . . regardless of federal law under the Americans with Disabilities Act of 1990,’ ” she said, quoting the new law.

Had those terms been applied in the United Airlines case, Kadue said, the plaintiffs might very well have been in the pilot’s seat.

To comply with the law, the California Chamber of Commerce is advising employers to take seriously all claims of disability discrimination and all requests for reasonable accommodation. Such requests should be discussed in person in a confidential setting in a timely way and in good faith, the chamber said.

In addition, the chamber is recommending that employers consult with human resources experts and lawyers to revise policies, and train supervisors on the new law. Employers also should limit pre-employment medical and psychological tests and questions unless they are job related and necessary for business, according to the chamber.

“The bottom line is that conditions that employers may once have declined to consider, requests for accommodation that employers may have once declined to consider, they must now take more seriously,” Kadue said.

Other new laws and regulations that will shape the California workplace in 2001, include:

Minimum Wage

Change: Starting Monday, the minimum wage in California goes up 50 cents to $6.25. A year from now, it rises again to $6.75.

Impact: In addition to improving the income of the state’s lowest wage earners, the Jan. 1 change increases the minimum salary for exempt employees to $2,166.66 a month, or two times minimum wage, according to the California chamber. A year from now, that rises to $2,340.

Also as of Monday, “learners”--employees in the first 160 hours in jobs for which they have no related experience--must be paid at least $5.75 an hour, up from $4.90.

Issues of fairness aside, the law does not entitle workers making more than minimum wage to raises, absent such provisions in a collective bargaining agreement or contract.

To hear a recorded message summarizing these changes, call the state Division of Labor Standards Enforcement’s special toll-free line, (888) 275-9243. Information is available in English, Spanish and Chinese. Employees not paid the minimum wage can contact the division to file a wage claim. The telephone number for the nearest office is listed in the government pages of local phone directories or on the Internet at https://www.dir.ca.gov/DLSE/offices.html.

Sexual Harassment Liability

Change: AB 1856 allows co-workers to be held liable for sexual harassment, overturning a 1999 verdict that a co-worker without supervisory authority was not liable.

Impact: “It’s not just supervisors or companies now,” Shapiro said. “It’s co-workers. So if you are sued, you’d have to hire a lawyer, and you stand to lose your assets, your home and your savings. That’s a potentially scary situation that an employee can find himself in.”

According to the California chamber, the law could interfere with employers’ ability to investigate claims of sexual harassment by deterring the cooperation by accused workers whose personal defense strategies may differ from those of the business.

Employers are advised to expand training in sexual harassment awareness beyond supervisory staff and to revise policies to make employee liability clear.

Domestic Violence

Change: AB 2357 requires employers of 25 or more employees to give unpaid leave to victims of domestic violence for medical care, social services, safety planning or relocation.

Impact: Employers were required last year by Senate Bill 56 to give domestic violence victims time off to seek legal intervention. The new law extends the requirement to grant time off for other types of relief.

The California chamber advises employers to make supervisors aware of the new law, to make forms available for employees to keep track of this time off and to promote the use of employee assistance programs for further relief.

Independent Contractors

Change: California employers who file Federal Form 1099-MISC for independent contractor services are now required to report to the Employment Development Department payments totaling $600 or more, or entering into contracts of $600 or more, in any calendar year. The law, intended to help collect child support payments, carries fines of up to $490 for employers who fail to report such payments or contracts within 20 days.

Impact: “It’s going to create a significant burden on employers,” Shapiro said. “If you have a continuing relationship with an independent contractor, every year that you pay them more than the threshold, you have to file a new report. That’s really kind of burdensome.”

Personnel Records

Change: SB 1327 expands the types of records that employers must allow employees to see, stating that “every employee has the right to inspect the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.”

Impact: Unlike an earlier law, SB 1327 does not refer to “personnel files,” opening up the possibility that employers would have to make available any documents that relate to an employee’s performance or grievance, according to an analysis by the Seyfarth Shaw law firm. The law exempts from inspection records related to a criminal investigation, reference letters and certain ratings and reports for promotions.

The California chamber is recommending that employers make personnel records available within a reasonable time and within reasonable intervals and keep records that are exempt in a separate file.

Wages and Hours

Change: AB 2509 makes several changes to state wage and hour laws.

Impact: Among other changes, the law raises the interest employers owe on overdue unpaid wages and the penalty on bounced paychecks. The law requires employers to post a bond equal to any labor commissioner’s awards they contest. The law requires payment of gratuities placed on credit cards no later than the next regular pay day. The law also changes the documentation required for paying workers on a piecework basis.