High Court Affirms Broad Definition Of Disability

On Thursday, February 20, 2003, the California Supreme Court issued its first decision in a decade to address the definition of “disability” under the Fair Employment and Housing Act (FEHA). The decision in Colmenares v. Braemar Country Club, Inc. clearly announces the rule that a person has a FEHA-protected physical “disability” when he or she has a physiological condition that limits a major life activity; it is not necessary that the condition “substantially limit” such an activity, as required to establish a disability under the federal Americans with Disabilities Act (ADA).

At first glance, the result in Colmenares is unsurprising given that the 2000 Legislature passed the so-called Poppink Act, which stated the same rule. But the Poppink Act did not address whether it applied to disability discrimination alleged to have occurred before its January 1, 2001 effective date. Thus, uncertainty had existed whether employers could defend themselves in such cases by arguing that a person’s physiological condition did not “substantially limit” a major life activity. Employers frequently relied on a string of earlier Court of Appeals’ decisions that held the narrower federal requirement existed under FEHA before the Poppink Act, but other decisions created conflict and confusion.

In Colmenares, the employee began working for the employer in 1972, injured his back at work in 1981 and was temporarily given light duty that ended in 1982 with his promotion to a position consistent with his physical limitations. A new supervisor reassigned him in 1997 to a job requiring heavy labor and he was terminated two months later for poor work. The employee brought an administrative complaint and then sued claiming that his termination was based on the physical disability presented by his “chronic back injury.” The trial court granted summary judgment for the employer (and the Court of Appeals affirmed) because the employee effectively admitted that the back injury did not substantially limit a major life activity.

The Supreme Court reversed. It reviewed the history of FEHA’s disability definition and concluded the law had not required an employee to show “substantial” limitation following amendments made in 1992. The Poppink Act merely clarified existing law on this point. Thus, even though Mr. Colmenares’ claim arose from events before January 1, 2001, his case could not be rejected on summary judgment simply because he admitted his condition did not impose a substantial limitation. In an important footnote, the Supreme Court disapproved the string of Court of Appeals’ decisions to the contrary.

The Colmenares decision will likely increase the exposure of many employers to liability arising from events before January 1, 2001 that may now be in various stages of administrative or court proceedings. Perhaps more importantly, the decision puts new emphasis on FEHA’s broad “disability” definition. Consequently, employers are reminded of the importance of engaging in an interactive process to identify any reasonable accommodations that might be suitable for employees who claim any level of physical or mental impairment. At the same time, employers must remain careful not to shape their communications during the interactive process so as to indicate the employer “regards” any individual as disabled (which could lead to a separate but related kind of liability). Indeed, although “substantial” limitation is not required, FEHA still requires that a physiological condition make a major life activity “difficult,” a term that has not yet been well defined. The result is a tightrope walk of potential liability that will only further complicate employer efforts to comply with FEHA and the ADA.

New Law Protects Use of Sick Leave for Illness of Family Member

The 2002 Legislature passed a dizzying number of new laws affecting HR issues, many of which have been highlighted in Downey Brand’s client alert mailings and employment law seminars during the past several months. One of the new laws that took effect January 1, 2003 changed the way employers must handle certain employee sick leave under absence control policies. All employers should review their absence control policies and practices in light of the new law.

The new law (Labor Code § 234) makes it illegal for an employer who offers sick leave to maintain an absence control policy under which sick leave taken to attend to the illness of an employee’s child, parent, spouse or domestic partner is counted against the employee in a way that may lead to discipline, discharge, demotion or suspension. On its face, the new law does not appear to make it automatically illegal for an employer to maintain a policy that counts such absences for other purposes, such as reduced compensation or bonuses. Even so, risk averse employers would likely be well advised to steer clear of those policies too, because they could be characterized as discriminating against employees on an improper basis.

It is important to recognize what the new law does not do. It does not require an employer to offer any sick leave. Only employers who choose to offer sick leave need worry about the new law or the related requirements that already existed (Labor Code § 233). These employers must permit employees to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months under the employer’s then current rate of accrual, to attend to the illness of a child, parent, spouse or domestic partner (the last category was added by the previous Legislature and may surprise unwary employers based outside California). But an employer can still choose not to offer sick leave at all.

Of course, many employers will likely continue to offer sick leave under company policies. Such employers should know that the new law does not extend the maximum period of leave to which an employee may be entitled under the FMLA or CFRA. And, only absences to care for the illness of a specified family member are protected by the new law. Sick leave absences not taken for that purpose might still be treated differently under an absence control policy in some circumstances. Thus, an administrative tracking system that counts sick leave taken to care for a specified family member’s illness separately from sick leave not taken for that purpose may be useful. Employers should also understand that “sick leave” in this context does not include any benefit provided under an employee welfare benefit plan subject to ERISA, any insurance benefit, worker’s compensation benefit, unemployment compensation disability benefit, or benefit not payable from the employer’s general assets.

In sum, the new law requires all employers to immediately review their sick leave and absence control policies to avoid the automatic violation in new Labor Code § 234, while also inviting wise employers to review related policies and practices to ensure compliance with Labor Code § 233.