While new U.S. ergonomics rules have raised the ire of employers, a disabilities law that quietly passed the California State Legislature will greatly expand the range of protected workers and could force major changes in state 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 went into effect Jan. 1 faced little opposition in the legislature and has triggered no such pre-emptive action.
It protects 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 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. 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.
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 . . . they must now take more seriously,” Kadue said.
