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THE PRUDENCE KAY POPPINK ACT
On September 30, 2000, Governor Gray Davis signed into law AB 2222, also known as the Prudence Kay Poppink Act. Pru Poppink was an advocate for California's employment and housing laws for more than 25 years. Less than two months after the Poppink Act was signed, Pru died in her home from complications of breast cancer.
The Poppink Act was designed to re-affirm California's strong and independent commitment to combating disability-based discrimination in employment and other arena. Although the federal Americans with Disabilities Act provides a floor of protection, California law has always included additional protections. For example, in 1982, in the American National case, the California Supreme Court clarified that the Fair Employment and Housing Act encompasses discrimination against an employee with a physical condition which is potentially disabling. The ADA employs a different standard. According to the Sutton trilogy of cases, decided by the United States Supreme Court in 1999, the ADA does not protect persons with disabling conditions which are currently stabilized with mitigating measures such as medications and prosthetic devices. Under the ADA's requirements as stringently applied by federal courts, persons with significant disabilities, including cancer, insulin-dependent diabetes, amputation, and bipolar disorder, have been denied any protection.
Clarifying the definitions of physical and mental disability and medical condition, the Poppink Act explicitly confirms that the definitions of ''physical disability'' and ''mental disability'' under state law are distinct from the definitions under federal law. The Act also makes these definitions uniform throughout several civil rights statutes found in the California code. In addition, the legislation specifies that employers shall promptly and appropriately respond to employees who request accommodations for their known disabilities. The legislation further details the extent to which employers may make medical inquiries or require medical examinations of their applicants and employees.
An extensive statement of legislative intent is codified at California Government Code § 12926.1. This statement instructs the state and federal courts that disability discrimination cases brought under California's anti-discrimination statutes should be decided on the merits, and not upon highly technical and restrictive definitional or standing requirements: "It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling."
Specific provisions of the Poppink Act include the following:
"Limitation," not "substantial limitation." California's employment discrimination law requires a ''limitation'' upon a major life activity, but has never required, as does the ADA, a ''substantial limitation.'' The Poppink Act confirms that this substantive distinction is intentional. According to the legislative intent language, which is codified by the new law, "[t]his distinction is intended to result in broader coverage under the law of this state than under that federal act."
No mitigating measures. The legislation makes clear that whether a mental or physical condition "limits" an individual's ability to participate in major life activities, and thereby constitutes a disability shall be determined without regard to mitigating measures such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits an individual's ability to participate in major life activities. This provision is consistent with the American National standard.
Major life activities broadly construed. The legislation makes clear that the term "major life activities" shall be broadly construed to include physical, mental, and social activities, and working. This provision reflects the pre-existing statutory instruction that the provisions of the FEHA "shall be construed liberally for the accomplishment of [its] purposes." Cal. Gov't Code § 12993(a).
Record of disability covered. The ADA protects individuals with a record or history of disability, as well as individuals with actual disabilities. The Poppink Act makes clear that California law also extends to persons with a history of a mental or physical disability. This provision is consistent with the FEHA's provision that the ADA's definition of disability should be followed if it results in greater protection.
Risk of future disability covered. Under American National, the California's anti-discrimination laws have long protected persons viewed or treated as having a potentially disabling condition. This rule is re-codified in the Poppink Act.
Change to definition of medical condition. The legislation specifies that any health impairment related to or associated with a diagnosis of cancer, or a record or history of such a diagnosis, constitutes a "medical condition," regardless of whether the individual has been rehabilitated or cured.
Definitions consistent. The Poppink Act makes the definitions of physical disability, mental disability, and medical condition consistent throughout several civil rights provisions, including the FEHA's employment and housing provisions and the Unruh Civil Rights Act.
Interactive, accommodation process required. Regulations promulgated pursuant to the ADA describe the appropriate response by an employer to an employee who has requested accommodation. Several Circuit courts - including the 9th Circuit in a case called Barnett v. U.S. Air - have ruled that an interactive accommodation process is a required element of the employer's obligations under the ADA. The Poppink Act draws upon this federal law, and specifies that it is an unlawful employment practice for an employer to fail to timely respond in good faith to an employee's request for accommodation.
Pre-offer medical inquiries limited. Like the ADA, the Poppink Act specifies that it is an unlawful employment practice for an employer or employment agency to require any medical or psychological examination, or to make any medical, psychological, or disability-related inquiry, of an applicant prior to making an offer of employment. An employer may make inquiries into the ability of an applicant to perform job-related functions, and may respond to an applicant's request for reasonable accommodation.
Post-offer medical inquiries limited. The ADA expressly permits employers to make extensive medical inquiries of new employees following a conditional job offer, so long as all entering employees are subjected to the same types of inquiries. This rule is inconsistent with California's constitutional right to privacy, which has long protected an individual's medical information. Accordingly, the Poppink Act confirms that after a job offer is extended, an employer may require medical or psychological examinations, or make medical, psychological, or disability-related inquires, so long as such inquiries and examinations are "job-related and consistent with business necessity," and all entering employees in the same job classification are subjected to such inquiries and examinations.
On-the-job medical inquiries limited. Like the ADA, the Poppink Act specifies that once an employee is on the job, an employer may not make medical or psychological inquiries or require a medical or psychological examination unless such inquiry or examination is job-related and consistent with business necessity. However, an employer may conduct voluntary medical examinations that are part of an employee heath program.
Claudia Center - 2001
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