Date of Hearing: January 8, 2020

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Ash Kalra, Chair

ABPCA Bill Id:AB 882 (

Author:McCarty) – As Amended Ver:January 6, 2020

SUBJECT: Discrimination in employment: drug rehabilitation programs

SUMMARY: Provides that an individual with a physical or mental disability covered by the Fair Employment and Housing Act (FEHA) includes a person who has completed, or is in the process of completing, a supervised rehabilitation program to end illegal drug use, has been otherwise successfully rehabilitated, or who is erroneously regarded as engaging in illegal drug use.

EXISTING LAW:

1. Establishes the Fair Employment and Housing Act (FEHA), to among other things, prohibit discrimination in employment based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
2. Defines a mental disability as including, but not limited to, any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.
3. Defines a physical disability as including, but not limited to, any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:

(a) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

(b) Limits a major life activity.

1. Excludes from the above definitions sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
2. Provides that it is unlawful discrimination for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee unless it would produce undue hardship.

FISCAL EFFECT: Unknown

COMMENTS: According to the author, "The opioid epidemic has taken thousands of lives and disrupted many others. Addiction changes the course of people’s lives but also the lives of those around the person affected. Today, with the help of Medication Assisted Treatment people are gaining back their lives, including reentry to school and employment. AB 882 revises the current state definition of physical and mental disability to include those who have completed a rehabilitation program and are no longer involved in illegal drug use; we must ensure a smooth reentry to the work force."

Federal Law and Disability Discrimination

Signed into law in 1990, the Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in employment, transportation, public accommodations, communications and access to state and local government’ programs and services. In the employment context, the right of employees and job applicants to be free from disability discrimination is enforced by the Equal Employment Opportunity Commission (EEOC).

Furthermore, the ADA was amended in 2008 in response to several U.S. Supreme Court decisions that were seen as weakening its safeguards. One such amendment clarified that the definition of “disability” for purposes of the Act is to be construed broadly to the benefit of individuals seeking its protection. Another provision directed courts to focus on whether discrimination has occurred rather than whether the individual fits into a precise definition of having a disability. In other words, the analysis of whether an individual’s impairment rises to the level of a disability should not be an extensive one.

The employment provisions of the ADA, codified in Title I, provide that a qualified individual with a disability can include an individual who has successfully completed or is participating in a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs. See U.S.C. § 12114(b). This bill would amend FEHA’s definition of disability to include such language. Federal regulations interpreting the ADA offer some legal guidance on how to treat an employee’s prior drug addiction.^[1] The regulations define the term “illegal use of drugs” as the use of drugs the possession or distribution of which is unlawful under the federal Controlled Substances Act.^[2] They also offer some instruction on the term “rehabilitation program,” listing as examples both in-patient and out-patient programs, employee assistance programs, and professionally recognized self-help programs such as Narcotics Anonymous.^[3]

FEHA May Already Cover Individuals Who Have Completed or Are Participating in Rehabilitation

Regulations interpreting FEHA provide that past drug addiction generally is a disability and that individuals who were addicted to drugs but are not currently using illegal drugs are protected from employment discrimination. See 2 CCR §11071(d). In addition, Government Code §12926 (n) provides that in the event the ADA more broadly defines the term “disability,” then that broader protection or coverage shall be deemed incorporated into the definition of disability under FEHA. Thus, it can be argued that existing state law already considers an individual with a prior drug addiction who is in or has completed a supervised drug rehabilitation program to have a qualifying disability.

Employees With a Qualified Disability Cannot Endanger the Health and Safety of Others

Under FEHA, an employee with a qualified disability or medical condition may seek a reasonable accommodation to perform the essential functions of their job. The reasonable accommodation process is an interactive process, which takes into account the needs of both the employee and the employer. An accommodation is not “reasonable” if it creates an undue hardship for the employer. In addition, Government Code §12940 (a)(2) provides that an employer is not prohibited from refusing to hire or discharging an employee who “…cannot perform [their] duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.”

Committee Comments

As stated above, this bill inserts language from the ADA’s definition of “disability” that pertains to individuals with drug prior addiction who enter or complete supervised rehabilitation programs or are otherwise rehabilitated successfully. The incorporated language includes some terms that are not defined in the ADA or by its interpretative guidance. For example, the term “otherwise rehabilitated successfully” is not defined and could be subject to varying interpretations. The author may wish to consider additional language to clarify this concept by way of providing examples. The author may also wish to clarify what it means in practice to “successfully” complete a drug rehabilitation program.

Arguments in Support

Alcohol Justice is in support and writes that this type of legislation will “bring much needed attention, resources, and innovation to opioid prevention and treatment efforts in California.”

Arguments in Opposition

The California Chamber of Commerce is opposed and argues, “Existing California law already protects employees with disabilities pursuant to the Fair Employment and Housing Act (FEHA). FEHA, overseen by the Department of Fair Employment & Housing (DFEH), prohibits employers with more than five employees from terminating an employee solely based on a disability. Though current drug use is not protected as a disability, Department of Health and Human Services has interpreted substance use disorders such as drug addiction, and their corresponding treatments (the focus of AB 882), to qualify as a disability under the Americans with Disabilities Act (ADA). It is likely that drug addiction would similarly be treated as a disability under California’s FEHA.”

Prior Legislation

AB 2069 (Bonta) of 2018 would have provided that, when used to treat a known physical or mental disability or known medical condition, the medical use of cannabis by a qualified patient or person with an identification card is subject to reasonable accommodation. The measure was held in the Assembly Appropriations Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Alcohol Justice

Opposition

California Chamber of Commerce

Analysis Prepared by: Megan Lane / L. & E. /

1. Appendix to 29 CFR §1630.3. ↑

2. Ibid. The Controlled Substances Act, 21 U.S.C. §811, places all substances which are in some manner regulated under existing federal law into one of five schedules. ↑

3. Ibid. ↑