When working with employees with disabilities, employers need to keep track of various laws that govern whether the employee may be entitled to leaves, accommodation, or even a disability retirement. What makes matters more complicated is that the definition of disability is not the same under each law. So, while a medical condition may meet the legal definition of a disability under one of the laws, it may not under another. We will explore the various ways that “disability” has been defined in federal and California law.
Under the federal Family and Medical Leave Act and the California Family Rights Act, an employee may be eligible for leave if the employee has a “serious health condition.” Under the FMLA, a “serious health condition” is defined as “an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider.” Similarly, under the CFRA, a “serious health condition” is defined as “an illness, injury (including, but not limited to, on-the-job injuries), impairment, or physical or mental condition of the employee or a family member of the employee that involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance abuse.”
One major difference between the two leave laws is pregnancy-related disabilities. Under the FMLA, pregnancy-related disabilities do qualify as a “serious health condition.” However, under the CFRA, pregnancy-related disabilities do not. Under California law, employees with pregnancy-related disabilities may be entitled to Pregnancy Disability Leave, which is separate from leave under the CFRA.
Under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act, an employee may be eligible for a reasonable accommodation if they have a physical or mental condition that impairs a major life activity. Please note that under the ADA, the requirement is that the condition must “substantially” impair a major life activity, but that under the FEHA, the impairment need not be “substantial.” For California employers, we recommend using the FEHA standard.
Unlike the definition of “serious health condition” above, a disability under ADA/FEHA does not need “inpatient care” or “continuing treatment” to be considered a disability. Rather, ADA/FEHA examines whether a “major life activity” is impaired. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
PERL – Disability Retirement
For those agencies that are subject to the Public Employees’ Retirement Law, there is yet another definition of disability that they must know. Under PERL, an employee may be eligible for disability retirement if the employee has a “mental or physical incapacity for the performance of the usual duties.” The “incapacity for performance of duty” means “disability of permanent or extended duration, which is expected to last at least 12 consecutive months or will result in death”
Here, there is a need to look at the duration of the incapacity prospectively. It must either be permanent (which is not necessarily the same thing as “Maximum Medical Improvement” or “Permanent and Stationary”) or expected to last at least 12 months. So, while a short-term disability under ADA/FEHA may entitle an employee to an accommodation, it may not entitle the employee to a disability retirement.
Workers’ compensation defines an industrial injury as any injury or disease arising out of employment, regardless of fault. This is a broad definition, but the key is that it arises out of employment. An industrial injury may overlap with any of the definitions of “disability” above, but that is not always necessarily the case.
Paid Sick Leave
California’s Paid Sick Leave Law provides for a minimum amount of sick leave for an employee to use for the “diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee.” Employers probably do not consider employees using “sick leave” as having a disability. For example, a common cold is probably not going to qualify as a disability under the laws above. However, this does not mean that the laws are mutually exclusive of one another. If an employee has a condition that qualifies as a “disability,” then the employee could also be eligible to use leave under the Paid Sick Leave Law.
Finally, your agency may provide its own sick leave benefits to your employees. Please review your agency’s own policies, rules, and regulations to determine for what purposes sick leave can be used.
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Employers have to navigate the various laws that define “disability.” Unfortunately, there is not one standard definition that applies to all the various laws. As a result, it can often be confusing and difficult at times (especially when you may get conflicting opinions from different doctors!). Please consult with legal counsel if your agency needs assistance in navigating these various laws.