As used in this article, the following definitions
apply:
(a) "Assistive animal" means an
animal that is necessary as a reasonable accommodation for a person with a
disability.
(1) Specific examples include,
but are not limited to:
(A) "Guide dog," as
defined at Civil Code section
54.1, trained
to guide a blind or visually impaired person.
(B) "Signal dog," as defined at Civil Code
section
54.1, or other
animal trained to alert a deaf or hearing impaired person to sounds.
(C) "Service dog," as defined at Civil Code
section
54.1, or other
animal individually trained to the requirements of a person with a
disability.
(D) "Support dog" or
other animal that provides emotional, cognitive, or other similar support to a
person with a disability, including, but not limited to, traumatic brain
injuries or mental disabilities, such as major depression.
(2) Minimum standards for assistive animals
include, but are not limited to, the following. Employers may require that an
assistive animal in the workplace:
(A) is
free from offensive odors and displays habits appropriate to the work
environment, for example, the elimination of urine and feces; and
(B) does not engage in behavior that
endangers the health or safety of the individual with a disability or others in
the workplace.
(3) A
"support animal" may constitute a reasonable accommodation in certain
circumstances. A support animal is one that provides emotional, cognitive, or
other similar support to a person with a disability, including, but not limited
to, traumatic brain injuries or mental disabilities, such as major depression.
As in other contexts, what constitutes a reasonable accommodation requires an
individualized analysis reached through the interactive process.
(b) "Business Necessity," as used
in this article regarding medical or psychological examinations, means that the
need for the disability inquiry or medical examination is vital to the
business.
(c) "CFRA" means the
Moore-Brown-Roberti Family Rights Act of 1993. (California Family Rights Act,
Gov. Code §§
12945.1
and
12945.2.)
As used in this article "CFRA leave" means medical leave taken pursuant to
CFRA.
(d) "Disability" shall be
broadly construed to mean and include any of the following definitions:
(1) "Mental disability," as defined at
Government Code section
12926,
includes, but is not limited to, having any mental or psychological disorder or
condition that limits a major life activity. "Mental disability" includes, but
is not limited to, emotional or mental illness, intellectual or cognitive
disability (formerly referred to as "mental retardation"), organic brain
syndrome, or specific learning disabilities, autism spectrum disorders,
schizophrenia, and chronic or episodic conditions such as clinical depression,
bipolar disorder, post-traumatic stress disorder, and obsessive compulsive
disorder.
(2) "Physical
disability," as defined at Government Code section
12926,
includes, but is not limited to, having any anatomical loss, cosmetic
disfigurement, physiological disease, disorder or condition that does both of
the following:
(A) affects one or more of the
following body systems: neurological; immunological; musculoskeletal; special
sense organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; circulatory; skin;
and endocrine; and
(B) limits a
major life activity.
(C)
"Disability" includes, but is not limited to, deafness, blindness, partially or
completely missing limbs, mobility impairments requiring the use of a
wheelchair, cerebral palsy, and chronic or episodic conditions such as
HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis,
and heart and circulatory disease.
(3) A "special education" disability is any
other recognized health impairment or mental or psychological disorder not
described in section 11065(d) of this article, that requires or has required in
the past special education or related services. A special education disability
may include a "specific learning disability," manifested by significant
difficulties in the acquisition and use of listening, speaking, reading,
writing, reasoning or mathematical abilities. A specific learning disability
can include conditions such as perceptual disabilities, brain injury, minimal
brain dysfunction, dyslexia and developmental aphasia. A special education
disability does not include special education or related services unrelated to
a health impairment or mental or psychological disorder, such as those for
English language acquisition by persons whose first language was not
English.
(4) A "record or history
of disability" includes previously having, or being misclassified as having, a
record or history of a mental or physical disability or special education
health impairment of which the employer or other covered entity is
aware.
(5) A "perceived disability"
means being "regarded as," "perceived as" or "treated as" having a disability.
Perceived disability includes:
(A) Being
regarded or treated by the employer or other entity covered by this article as
having, or having had, any mental or physical condition or adverse genetic
information that makes achievement of a major life activity difficult;
or
(B) Being subjected to an action
prohibited by this article, including non-selection, demotion, termination,
involuntary transfer or reassignment, or denial of any other term, condition,
or privilege of employment, based on an actual or perceived physical or mental
disease, disorder, or condition, or cosmetic disfigurement, anatomical loss,
adverse genetic information or special education disability, or its symptom,
such as taking medication, whether or not the perceived condition limits, or is
perceived to limit, a major life activity.
(6) A "perceived potential disability"
includes being regarded, perceived, or treated by the employer or other covered
entity as having, or having had, a physical or mental disease, disorder,
condition or cosmetic disfigurement, anatomical loss, adverse genetic
information or special education disability that has no present disabling
effect, but may become a mental or physical disability or special education
disability.
(7) "Medical condition"
is a term specifically defined at Government Code section
12926, to
mean either:
(A) any cancer-related physical
or mental health impairment from a diagnosis, record or history of cancer;
or
(B) a "genetic characteristic,"
as defined at Government Code section
12926.
"Genetic characteristics" means:
1. Any
scientifically or medically identifiable gene or chromosome, or combination or
alteration of a gene or chromosome, or any inherited characteristic that may
derive from a person or the person's family member, and
2. That is known to be a cause of a disease
or disorder in a person or the person's offspring, or that is associated with a
statistically increased risk of development of a disease or disorder, though
presently not associated with any disease or disorder symptoms.
(8) A "Disability" is
also any definition of "disability" used in the federal Americans with
Disabilities Act of 1990 (ADA), and as amended by the ADA Amendments Act of
2008 and the regulations adopted pursuant thereto, that would result in broader
protection of the civil rights of individuals with a mental or physical
disability or medical condition than provided by the FEHA. If so, the broader
ADA protections or coverage shall be deemed incorporated by reference into, and
shall prevail over conflicting provisions of, the FEHA's definition of
disability.
(9) "Disability" does
not include:
(A) excluded conditions listed
in the Government Code section
12926
definitions of mental and physical disability. These conditions are compulsive
gambling, kleptomania, pyromania, or psychoactive substance use disorders
resulting from the current unlawful use of controlled substances or other
drugs, and "sexual behavior disorders," as defined at section 11065(q), of this
article; or
(B) conditions that are
mild, which do not limit a major life activity, as determined on a case-by-case
basis. These excluded conditions have little or no residual effects, such as
the common cold; seasonal or common influenza; minor cuts, sprains, muscle
aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and
non-chronic gastrointestinal disorders.
(e) "Essential job functions" means the
fundamental job duties of the employment position the applicant or employee
with a disability holds or desires.
(1) A job
function may be considered essential for any of several reasons, including, but
not limited to, the following:
(A) The
function may be essential because the reason the position exists is to perform
that function.
(B) The function may
be essential because of the limited number of employees available among whom
the performance of that job function can be distributed.
(C) The function may be highly specialized,
so that the incumbent in the position is hired for his or her expertise or
ability to perform the particular function.
(2) Evidence of whether a particular function
is essential includes, but is not limited to, the following:
(A) The employer's or other covered entity's
judgment as to which functions are essential.
(B) Accurate, current written job
descriptions.
(C) The amount of
time spent on the job performing the function.
(D) The legitimate business consequences of
not requiring the incumbent to perform the function.
(E) Job descriptions or job functions
contained in a collective bargaining agreement.
(F) The work experience of past incumbents in
the job.
(G) The current work
experience of incumbents in similar jobs.
(H) Reference to the importance of the
performance of the job function in prior performance reviews.
(3) "Essential functions" do not
include the marginal functions of the position. "Marginal functions" of an
employment position are those that, if not performed, would not eliminate the
need for the job or that could be readily performed by another employee or that
could be performed in an alternative way.
(f) "Family member," for purposes of
discrimination on the basis of a genetic characteristic or genetic information,
includes the individual's relations from the first to fourth degree. This would
include children, siblings, half-siblings, parents, grandparents, aunts,
uncles, nieces, nephews, great aunts and uncles, first cousins, children of
first cousins, great grandparents, and great-great grandparents.
(g) "FMLA" means the federal Family and
Medical Leave Act of 1993 and its implementing regulations. For purposes of
this section only, "FMLA leave" means medical leave taken pursuant to
FMLA.
(h) "Genetic information," as
defined at Government Code section
12926,
means genetic information derived from an individual's or the individual's
family members' genetic tests, receipt of genetic services, participation in
genetic services clinical research or the manifestation of a disease or
disorder in an individual's family members.
(i) "Health care provider" means either:
(1) a medical or osteopathic doctor,
physician, or surgeon, licensed in California or in another state or country,
who directly treats or supervises the treatment of the applicant or employee;
or
(2) a marriage and family
therapist or acupuncturist, licensed in California or in another state or
country, or any other persons who meet the definition of "others capable of
providing health care services" under FMLA and its implementing regulations,
including podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, nurse practitioners, nurse midwives, clinical social workers,
physician assistants; or
(3) a
health care provider from whom an employer, other covered entity, or a group
health plan's benefits manager will accept medical certification of the
existence of a health condition to substantiate a claim for benefits.
(j) "Interactive process," as set
forth more fully at California Code of Regulations, title 2, section
11069,
means timely, good faith communication between the employer or other covered
entity and the applicant or employee or, when necessary because of the
disability or other circumstances, his or her representative to explore whether
or not the applicant or employee needs reasonable accommodation for the
applicant's or employee's disability to perform the essential functions of the
job, and, if so, how the person can be reasonably accommodated.
(k) "Job-related," as used in sections 11070,
11071 and 11072 means tailored to assess the employee's ability to carry out
the essential functions of the job or to determine whether the employee poses a
danger to the employee or others due to disability.
(l) "Major life activities" shall be
construed broadly and include physical, mental, and social activities,
especially those life activities that affect employability or otherwise present
a barrier to employment or advancement.
(1)
Major life activities include, but are not limited to, 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, and
working.
(2) Major life activities
include the operation of major bodily functions, including functions of the
immune system, special sense organs and skin, normal cell growth, digestive,
genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory,
cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive
functions. Major bodily functions include the operation of an individual organ
within a body system.
(3) An
impairment "limits" a major life activity if it makes the achievement of the
major life activity difficult.
(A) Whether
achievement of the major life activity is "difficult" is an individualized
assessment, which may consider what most people in the general population can
perform with little or no difficulty, what members of the individual's peer
group can perform with little or no difficulty, and/or what the individual
would be able to perform with little or no difficulty in the absence of
disability.
(B) Whether an
impairment limits a major life activity will usually not require scientific,
medical, or statistical analysis. Nothing in this paragraph is intended,
however, to prohibit the presentation of scientific, medical, or statistical
evidence, where appropriate.
(C)
"Limits" shall be determined without regard to mitigating measures or
reasonable accommodations, unless the mitigating measure itself limits a major
life activity.
(D) Working is a
major life activity, regardless of whether the actual or perceived working
limitation affects a particular employment or class or broad range of
employments.
(E) An impairment that
is episodic or in remission is a disability if it would limit a major life
activity when active.
(m) A "medical or psychological examination"
is a procedure or test performed by a health care provider that seeks or
obtains information about an individual's physical or mental disabilities or
health.
(n) "Mitigating measure" is
a treatment, therapy, or device that eliminates or reduces the limitation(s) of
a disability. Mitigating measures include, but are not limited to:
(1) Medications; medical supplies, equipment,
or appliances; low-vision devices (defined as devices that magnify, enhance, or
otherwise augment a visual image, but not including ordinary eyeglasses or
contact lenses); prosthetics, including limbs and devices; hearing aids,
cochlear implants, or other implantable hearing devices; mobility devices;
oxygen therapy equipment and supplies; and assistive animals, such as guide
dogs.
(2) Use of assistive
technology or devices, such as wheelchairs, braces, and canes.
(3) "Auxiliary aids and services," which
include:
(A) qualified interpreters or other
effective methods of making aurally delivered materials available to
individuals with hearing disabilities such as text pagers, captioned telephone,
video relay TTY and video remote interpreting;
(B) qualified readers, taped texts, or other
effective methods of making visually delivered materials available to
individuals with visual disabilities such as video magnification,
text-to-speech and voice recognition software, and related scanning and OCR
technologies;
(C) acquisition or
modification of equipment or devices; and
(D) other similar services and
actions.
(4) Learned
behavioral or adaptive neurological modifications.
(5) Surgical interventions, except for those
that permanently eliminate a disability.
(6) Psychotherapy, behavioral therapy, or
physical therapy.
(7) Reasonable
accommodations.
(o)
"Qualified individual," for purposes of disability discrimination under
California Code of Regulations, title 2, section
11066, is an applicant or
employee who has the requisite skill, experience, education, and other
job-related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform the
essential functions of such position.
(p) "Reasonable accommodation" is:
(1) modifications or adjustments that are:
(A) effective in enabling an applicant with a
disability to have an equal opportunity to be considered for a desired job,
or
(B) effective in enabling an
employee to perform the essential functions of the job the employee holds or
desires, or
(C) effective in
enabling an employee with a disability to enjoy equivalent benefits and
privileges of employment as are enjoyed by similarly situated employees without
disabilities.
(2)
Examples of Reasonable Accommodation. Reasonable accommodation may include, but
are not limited to, such measures as:
(A)
Making existing facilities used by applicants and employees readily accessible
to and usable by individuals with disabilities. This may include, but is not
limited to, providing accessible break rooms, restrooms, training rooms, or
reserved parking places; acquiring or modifying furniture, equipment or
devices; or making other similar adjustments in the work environment;
(B) Allowing applicants or employees to bring
assistive animals to the work site;
(C) Transferring an employee to a more
accessible worksite;
(D) Providing
assistive aids and services such as qualified readers or interpreters to an
applicant or employee;
(E) Job
Restructuring. This may include, but is not limited to, reallocation or
redistribution of non-essential job functions in a job with multiple
responsibilities;
(F) Providing a
part-time or modified work schedule;
(G) Permitting an alteration of when and/or
how an essential function is performed;
(H) Providing an adjustment or modification
of examinations, training materials or policies;
(I) Modifying an employer policy;
(J) Modifying supervisory methods (e.g.,
dividing complex tasks into smaller parts);
(K) Providing additional training;
(L) Permitting an employee to work from
home;
(M) Providing a paid or
unpaid leave for treatment and recovery, consistent with section
11068(c);
(N) Providing a
reassignment to a vacant position, consistent with section 11068(d);
and
(O) other similar
accommodations.
(q) "Sexual behavior disorders," as used in
this article, refers to pedophilia, exhibitionism, and voyeurism.
(r) "Undue hardship" means, with respect to
the provision of an accommodation, an action requiring significant difficulty
or expense incurred by an employer or other covered entity, when considered
under the totality of the circumstances in light of the following factors:
(1) the nature and net cost of the
accommodation needed under this article, taking into consideration the
availability of tax credits and deductions, and/or outside funding;
(2) the overall financial resources of the
facilities involved in the provision of the reasonable accommodations, the
number of persons employed at the facility, and the effect on expenses and
resources or the impact otherwise of these accommodations upon the operation of
the facility, including the impact on the ability of other employees to perform
their duties and the impact on the facility's ability to conduct
business;
(3) the overall financial
resources of the employer or other covered entity, the overall size of the
business of a covered entity with respect to the number of its employees, and
the number, type, and location of its facilities;
(4) the type of operation or operations,
including the composition, structure, and functions of the workforce of the
employer or other covered entity; and
(5) the geographic separateness,
administrative, or fiscal relationship of the facility or facilities.