Final Implementation of Disability Laws Approaching
Date: July 1994

Final implementation of federal and state laws prohibiting discrimination on the basis of disability will go into effect on July 26, 1994.  Failure to abide by these laws can result in severe consequences — including the imposition of punitive damages.  Here is what employers need to consider: 

Discrimination Prohibited

Both federal and state laws prohibit discrimination based upon disability. The federal law is called the Americans With Disabilities Act of 1990 (ADA) while the  California State law is the Fair Employment and Housing Act (FEHA) — which has been amended to conform to the ADA.  The laws in general prohibit “discrimination” against any qualified individual with a “disability.”  An individual is considered disabled if he or she: 

• Has a physical or mental impairment which substantially limits one or more major life activities

• Has a record of such impairment

• Is regarded as having an impairment.

The legal definition of “major life activities” includes caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working and sitting.

I.                     Reasonable Accommodation

The ADA and FEHA require that a “qualified individual with disability” be reasonably accommodated by employers. A qualified individual with a disability is one  who (with or without accommodation) can perform the essential functions of the employment position. Therefore it is important to determine the essential functions of the position.  Types of accommodations can include: 

• Making existing facilities accessible

• Restructuring jobs  (but not essential job functions — only of “non-essential, marginal” functions)

• Reassigning jobs or modifying work schedules

• Acquiring or modifying equipment 

• Providing qualified readers or interpreters 

•  Adjusting or modifying exams, training materials or policies.

II.                   Undue Hardship

Although accommodations must be made, if this results in undue hardship for the business it is not required. An undue hardship is defined as fundamentally altering the nature or operation of the business. This involves consideration of the size and financial resources of the facility and employer.

III.                 Pre-Employment Inquires

The new laws place substantial limitations on pre-employment inquiries and entrance examinations. For example, a pre-employment medical examination may be given, but only after a conditional offer is made. Any employment entrance examination must meet three criteria: 

• The exam must be given to all applicants 

•  The results must be kept confidential 

• The results cannot be used to disadvantage an individual with a disability unless the results clearly show he or she is not qualified.

IV.                Medical Plans

Recent regulations were recently adopted by the Equal Employment Opportunity Commission (EEOC) regarding situations in which company medical plans might violate the ADA. Among other things, the EEOC states that disability-based distinctions made in a company’s medical plan are impermissible. For example, a plan that excludes AIDS but includes coverage for other potentially catastrophic conditions is in violation. Similarly, a cap on expenses for a particular condition (such as AIDS) would be in violation of the law.

V.                  Take Action Now

Employers should act promptly in order to comply with the laws — including:

• Compile job descriptions listing only essential job functions for all positions 

• Insure that all pre-employment examinations comply with the laws

• Review all medical plans to verify legality

• Conduct an internal audit to insure the facilities are accessible to disabled individuals

• Adopt a company policy prohibiting discrimination 

• Place the federal ADA and similar state posters on employee bulletin boards

• Review all job applications and pre-employment procedures to eliminate impermissible inquiries (e.g., medical history, specifics about a person’s disability)

• Educate all supervisory employees about the new laws and sensitize them about the needs of disabled employees 

• Establish a procedure for evaluating what reasonable accommodations may be needed for disabled individuals.

Failure to comply with the ADA or FEHA can be serious. An employer could be liable for actual and punitive damages as well as damages caused by the disability discrimination.

The laws are fairly complex and, for some employers, the requirements may be quite new. If you have questions regarding the laws, need  assistance in complying with the laws or wish further information, please feel free to call our Labor Department, at (310) 858-7700.

Our Labor Department represents employers in wrongful termination and employment discrimination cases in state and federal courts. The department also represents employers in collective bargaining negotiations, arbitrations and matters before state and federal administrative agencies. In addition, we provide general labor counseling on unionization, personnel policies, grievances and wage and hour issues.

Rosenfeld, Meyer & Susman was founded in 1957. The Firm's areas of expertise include: Labor and Employment Law, Litigation, Corporate, Entertainment, Estate Planning, Trusts and Probate, Taxation, Family Law, Insurance Coverage and Defense, Real Estate and Employee Benefits.

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