Cal. Code Regs. Tit. 2, § 11067 - Defenses

Current through Register 2022 Notice Reg. No. 14, April 8, 2022

(a) In addition to any other defense provided in these disability regulations, any defense permissible under Article 1 of Subchapter 2, at California Code of Regulations, title 2, section 11010, shall be applicable to this article.
(b) Health or Safety of an Individual with a Disability. It is a permissible defense for an employer or other covered entity to demonstrate that, after engaging in the interactive process, there is no reasonable accommodation that would allow the applicant or employee to perform the essential functions of the position in question in a manner that would not endanger his or her health or safety because the job imposes an imminent and substantial degree of risk to the applicant or employee.
(c) Health and Safety of Others. It is a permissible defense for an employer or other covered entity to demonstrate that, after engaging in the interactive process, there is no reasonable accommodation that would allow the applicant or employee to perform the essential functions of the position in question in a manner that would not endanger the health or safety of others because the job imposes an imminent and substantial degree of risk to others.
(d) Future Risk. However, it is no defense to assert that an individual with a disability has a condition or a disease with a future risk, so long as the condition or disease does not presently interfere with his or her ability to perform the job in a manner that will not endanger the individual with a disability or others.
(e) Factors to be considered when determining the merits of the defenses enumerated in section 11067(b)-(d) include, but are not limited to:
(1) the duration of the risk;
(2) the nature and severity of the potential harm;
(3) the likelihood that potential harm will occur;
(4) the imminence of the potential harm; and
(5) consideration of relevant information about an employee's past work history.

The analysis of these factors should be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

Notes

Cal. Code Regs. Tit. 2, § 11067

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1 and 12940, Government Code.

1. Change without regulatory effect renumbering former section 7293.8 to new section 11067 and amending section filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of subsection (b) filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).

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