California’s disability regulations clarify that determining whether a disorder makes a life activity “difficult” requires an individualized assessment. Employers should consider what most people in the general population or in an individual’s peer group can perform with little or no difficulty and compare that assessment to the employee’s abilities.

Employers may, but are not required to, engage in scientific, medical or statistical analysis. Employers should determine whether a condition “limits” a major life activity without regard to any mitigating measures such as assistive devices or medications (see Correctable Impairment May Be a Disability).3

The standard under the federal ADA is also generally pre-disposed to finding that the disability is covered. The final rules state that the term “substantially limits” under federal law should be broadly construed in favor of expansive coverage.

Federal regulations also provide that:

• The determination requires an individualized assessment.
• The ADA’s primary focus is on whether discrimination occurred and the determination of “disability” shouldn’t require extensive analysis.

If an employee has an impairment that’s episodic or in remission, it can still be a disability under federal and state law if the impairment would substantially limit (federal) or limit (state) a major life activity when active.4 Examples of episodic impairments include asthma, high blood pressure and bipolar disorder. Examples of impairments in remission that may return and limit major life activities include cancer.

To be covered, an impairment need only substantially limit (federal) or limit (state) one major life activity, not multiple activities.5

• Both FEHA and federal law lead to the same result: broad definitions of disability and expanded coverage.

Temporary and Symptomless Disabilities May Be Covered

An impairment need not last a particular length of time to be considered substantially limiting under federal law.6 However, certain transitory impairments may be excluded from the “regarded as” definition. For more information, see “Record Of” and “Regarded As” and “Perceived As” Defined.

California law can also provide protection to transitory impairments that “limit” a major life activity. The focus should be on the impairment’s nature and severity and its effect on any major life activity.

A federal court ruled that “a sufficiently severe temporary disability” may be protected under federal law. The court noted that the ADAAA was intended by Congress to liberalize the ADA “in favor of broad coverage,” and Congress specifically directs courts to interpret the amended statute as broadly as possible. The court found that the text and purpose of the ADAAA “make clear that such impairment can constitute a disability.”7

In California, the test for what constitutes a disability is already, in many respects, broader than the federal test, since an individual need only be “limited” in performing a major life activity — and even a transitory condition may “limit” a major life activity. State disability regulations exclude “mild conditions” from the definition of disability if these conditions don’t limit a major life activity. For more information, see Exclusions From Disability.

• For questions about whether an employee’s impairment requires accommodation, consult legal counsel. Employers shouldn’t make these decisions alone because a misstep can result in significant liability. Even if the impairment doesn’t ultimately qualify as a “disability,” it may qualify as a “serious health condition” entitling the employee to time off under the federal Family and Medical Leave Act or the California Family Rights Act.

Even if an employee’s impairment doesn’t have active symptoms, the employee may still be disabled. An impairment that requires an employee to take time off, or other measures, to treat the impairment may trigger disability protections when the measures affect the employee’s ability to work.

In a case where an employee’s benign, asymptomatic tumor that required monitoring by a doctor, the court stated that repeated or extended absences from work that are taken to treat a physical ailment constitute a limitation on the major life activity of working, even when the ailment itself doesn’t cause physical symptoms.8

Inability to Work Under a Particular Supervisor May Not Be Covered Disability

An inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of job performance — even when diagnosed by a physician as a “type of stress-related mental illness” — isn’t a disability recognized in California’s FEHA.9

But an employee suffering from psychological issues, such as major depression, bipolar disorders and anxiety disorders, would be covered under state and federal disability laws. Federal and state agencies will generally enforce these protections broadly.

• If you question whether an employee’s condition amounts to a disability, seek legal counsel.

1. Govt. Code sec. 12926.1