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On the December 30, 2012, the Americans with Disabilities Act 1990 was amended, and the Fair Employment and Housing Council [1] altered the California Code of Regulations[2] to reflect those changes accordingly.[3] More specifically, the new regulations have expanded on the existing laws and now provide more detailed definitions of recognized disabilities.
Mental Disabilities now include the following:
“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.”[4]
Such clarity stands in stark contrast with the far more vague definition of the past, which defined a mental disability as follows:
“[A]ny chronic or episodic mental or psychological disorder or condition, such as emotional or mental illness, intellectual or cognitive disability, organic brain syndrome, clinical depression, bipolar disorder, or specific learning disabilities.”[5]
As a disabled employee, one is entitled to request a “Reasonable Accommodation” in his or her workplace through the same process as before. The only difference is that the employer is no longer required to ask for evidence of that disability for prior to granting that request. However, they may still choose to do so, in which case the employee is required to provide the documentation from his or her “Health Care Provider” (Therapist or Medical Professional) stating what the disability is and what accommodation is needed. It is also the employer’s obligation to initiate the interactive process after you have informed them of your need of an accommodation.
The list of Therapists and Medical Professionals has also been broadened[6], now providing examples of “others capable of providing health care services” under the FMLA and its implementing regulations.” They now include “podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers and physician assistants”[7]. This is in addition to the widely known definitions of §7293.6. (i) (1 & 3), which includes physicians and surgeons.
If an employee has evidence of a disability from one of the providers mentioned above, s/he now has a legitimate right to request anything for the newly lengthened definitions provided in the Code. It is also now expected that an employer, when making “modifications or adjustments” in relation to the Reasonable accommodation, ensures that the employee enjoys the same benefits of other employees in similar circumstances without a disability.[8]
The added definitions of Reasonable Accommodation include “reserved parking spaces, modifying supervisory methods and employer policies, permitting telecommuting, and … bringing assistive animals to the workplace.”[9]
Assistive animals differ from what employers may already come expect when accommodating an employee’s disability. Prior to the amendment, employers would associate a support animal with a guide dog or other service dogs, such as a trained seizure alert dog.
The new definitions no longer use the same definition as at Civil Code section 54.1[10], which specifically states that support animals are dogs.
The new definition now includes any animal “individually trained to the requirements of a person with a disability”[11] and an “animal that provides emotional or other support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities such as major depression.”[12]
This now means, for example, that someone diagnosed with a severe anxiety disorder may request permission for a rabbit in their work environment to help an employee manage that anxiety at work.
As can be expected, there are standard requirements that an employer can legally expect of the person with an assistive animal in the workplace. The employee can be required to ensure that their assistive animal meets the following guidelines:
“(A) is free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces;
(B) does not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace; and
(C) is trained to provide assistance for the employee’s disability.”[13]
The changes made to the code not only mean big changes for employees, but they also mean large changes for employers. With the power balance beginning to shift, employees will find that although they have more rights, employers will be slow in decision making and will now be obligated to consult a lawyer more frequently than before to ensure they are meeting their legal requirements. In other words, there may be less chance of an agreement being made civilly without also having to endure the intervention or intimidation of upper class professionals.