A qualified individual with a physical or mental impairment that substantially limits a major life activity is “disabled” and protected by the ADA. A qualified person with a physical or mental impairment that limits a major life activity is “disabled” and protected by the FEHA. Under both laws a person with HIV/AIDS, for example, is considered to be disabled.
Physical and mental disabilities under the ADA and the FEHA include a broad range of medical conditions, such as:
Major life activities are basic functions and may include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, reproduction, and working.
Major life activities also include operation of a major bodily function, such as normal cell growth, the operation of an organ, or the functioning of the digestive, neurological, respiratory, circulatory, cardiovascular, endocrine, musculoskeletal, and reproductive functions.
An impairment is a disability under the ADA if it substantially limits an individual’s ability to perform a major life activity compared to most people in the general population. An impairment limits a major life activity, and is a disability under the FEHA, if it makes achievement of the activity more difficult.3. What if my condition is stabilized with medication or I use a prosthetic device?
Under the FEHA and the amended ADA, an employee’s disability is considered without regard to “mitigating measures” such as medication, prosthetics, assistive technology, or other devices or strategies used to mitigate the effects of the condition. This means that people with physical or mental conditions who are currently stable due to medications or treatment are still protected.4. What if my condition is episodic or is currently in remission?
A condition which is episodic or in remission is considered a “disability” if it would be substantially limiting in its active phase.5. Who else is protected?
The ADA and the FEHA also protect people who are regarded or treated as having a disability, or who have a record or history of a disability. The ADA also protects a person who experiences discrimination based upon an impairment, even if the person does not have an actual or perceived disability. In addition, the FEHA protects persons who are not currently disabled, but who may become disabled in the future.6. What are my rights if I have a disability?
Under the ADA, employers with fifteen or more employees cannot discriminate against qualified individuals with disabilities. The FEHA bars discrimination by employers with five or more employees, or harassment by employers with one or more employees. This means that if you have a disability and can do the basic duties of the job, you cannot be harassed, demoted, terminated, paid less, or treated more poorly because of your disability.
Persons with disabilities may request and obtain reasonable accommodations to enable them to perform their jobs. A disabled employee is “qualified” is she or he can perform the essential functions of the job with or without reasonable accommodations.
Workers with disabilities may challenge unnecessary employer policies that exclude them from employment opportunities.
Qualified applicants cannot be rejected on the basis of their disabilities, and may obtain reasonable accommodation during the hiring process.
Reasonable accommodations are adjustments or modifications made to a job or workplace which enable an employee or job applicant to successfully perform the basic duties of a position. A reasonable accommodation must be “reasonable” on its face and may not eliminate the essential functions of the job. An accommodation may not be unduly costly or disruptive for the employer (undue hardship). An employee also has the right to refuse an accommodation.
Examples of possible reasonable accommodations include:
An employer is required to accommodate only known disabilities. There is no one specific way to notify an employer; an employer’s knowledge of a disability may be implied. However, to guarantee the legal right to accommodation, an employee should explicitly disclose the disability.9. What do I have to say to my employer if I am seeking an accommodation?
To be protected by the ADA/FEHA, you must disclose your disability to at least one person who represents the employer, such as a supervisor or human resource person. If your disability is of a personal nature, you do not necessarily need to tell your employer all the details of the disability. You should provide your employer with enough information to show that you have a disability/impairment that substantially limits certain major life activities.
In your disclosure or request, it is often helpful to use words such as “disability,” “impairment,” “limiting,” “major life activities,” and “accommodation.”
Disclosure to an employer of a hidden disability is always an extremely personal decision. Employees considering such disclosure should compare the costs and benefits, including:
No. You can request accommodation in writing, orally, through e-mail or by any other form of communication. However, you may want to keep records in case there is a dispute in the future over whether you made the request.11. Am I required to release my medical or psychiatric records to obtain accommodations?
No. If your disability or your need for accommodation is not obvious, your employer may ask for reasonable medical documentation. The documentation should be limited to a doctor’s note or other medical documents showing that you have a disability and need accommodation. You are not required to produce your entire medical or mental health file.12. Do I have to disclose my disability to everyone at work?
No. You must disclose to someone who represents the employer, such as a supervisor or a human resources person. However, you are not required to disclose to co-workers. In fact, medical information obtained by an employer must be kept confidential, and maintained in files separate from your personnel file. This information can be revealed only to supervisors and managers who need to know about the accommodation and any restrictions on your work or duties.13. What happens after I request an accommodation?
Once you request an accommodation, your employer must make a reasonable effort to determine the appropriate accommodation. However, you must also be willing to participate in the process of developing and implementing the accommodation.
Employees who do not fully participate in the process may lose their ADA and FEHA rights. This participation may require the employee to submit requested medical documentation and to attend scheduled meetings. If the employer or employee rejects a suggested accommodation, the employee must take steps to continue the process. You may wish to enlist the assistance of third-party advocates during the process.
To protect their rights, employees should take proactive steps, such as:
Applying For a Job
Before a job offer is made, an employer may not ask you any questions that are likely to reveal information about a disability. This rule bars direct questions about a particular disability (“Do you have any heart problems or mental illnesses?”), questions about the ability to perform “major life activities” unrelated to the job (“Have you ever been unable to take care of yourself?”), and most questions regarding prescription drug use (“Do you take painkillers or antidepressants?”).
However, if the disability is obvious or if the applicant has voluntarily disclosed a disability, and the employer reasonably believes that the applicant will need an accommodation to do the job, then the employer may ask limited questions about accommodations.15. Am I required to disclose my disability when I apply for a job to protect my rights?
No. You are not required to disclose your disability at the time you apply for a job, even if you later need a workplace accommodation. You may wait until you actually are seeking accommodation—which may be months or years later—before you disclose. However, it is wise to seek accommodation before your performance suffers.16. What may an employer ask me after a job offer has been made, but before I start working?
The ADA does not prohibit post-offer, pre-employment medical examinations or inquiries—even those unrelated to job performance—so long as the information is kept confidential, and all entering employees in the same job category are asked the same questions. If an employer uses the results of such examinations or inquiries to revoke the job offer, it may be required to prove that its reasons are “job-related and consistent with business necessity.”
Under the FEHA, medical inquiries and examinations made after a job offer has been given but before the person starts working must be job-related and consistent with business necessity.
On-the-Job Medical Inquiries and Examinations
Employers cannot ask questions about your disability, or require a medical examination, unless the questions or examination are job-related and consistent with business necessity. Even if you seem sickly or ill, an employer cannot ask medical questions unless there is a job-related reason.
The following situations may justify limited medical inquiries. Otherwise, your employer is probably not entitled to medical information:
Even if there is a job-related reason, the employer’s request for medical information or documentation must still be reasonable and related to the situation. No requests can exceed the scope of the employer’s need to evaluate the impact of the disability on the situation. Most important, any medical information the employer obtains must be kept confidential, and stored in a separate medical file—not with your regular personnel file.