160 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com Ban on “psychological” examination. While federal law forbids only all medical examinations that precede a job offer,63 California explicitly forbids pre-employment medical examinations and psychological examinations, subject to the exemptions below.64 Ban on broad-ranging employment entrance examination. California law, like federal law, generally permits employers to require an “employment entrance examination” of all job applicants seeking to enter the same job classification, so long as the exam occurs after the employment offer and before employment starts.65 But while federal law permits any medical inquiry in connection with the employment entrance examination, California requires that all aspects of the examination itself be “job-related and consistent with business necessity.”66 Both federal and California law, meanwhile, permit examinations that are “job related” and “consistent with business necessity.”67 Limits on inquiries conducted pre-offer and post-hire. Federal law permits employers to inquire as to a job applicant’s disability before making an offer if the inquiry is “job-related” and “consistent with business necessity.”68 California permits employers to “inquire into the ability of an applicant to perform job-related functions,” but does not allow them to conduct examinations.69 Where an employee has started work, both federal and California law permit disability inquiries and examinations that are “job-related and consistent with business necessity.”70 Note, though, that the FEHC has opined that an employer may not require employees requesting accommodations to produce complete medical records to substantiate limitations stemming from a disability, as those records are likely to contain information that is unrelated to the disability and need for accommodation, and therefore is not job-related nor required by business necessity.71 6.3.3 Does the employer or the employee have the burden of proof as to qualifications? Under federal law, a plaintiff suing for disability discrimination must prove that he or she is a qualified individual. The language of the California statute arguably suggests something different: it broadly prohibits discrimination because of a physical or mental disability72 and then exempts those situations where “the employee, because of a physical or mental disability, is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those 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.”73 One Court of Appeal decision read this statutory language to mean that the plaintiff’s lack of qualifications is an affirmative defense, to be proved by the defendant employer. Accordingly, the plaintiff’s ability to perform essential duties would be a matter for the defendant to disprove as part of an affirmative defense rather than a matter for the plaintiff to prove in the plaintiff’s case in chief.74 In 2007, the California Supreme Court reversed this decision.75 Citing statutory language, legislative intent, and well-settled law, the high court concluded that the FEHA, like the ADA, requires the plaintiff to prove an ability to perform the essential functions of the job, with or without reasonable accommodation. While the Supreme Court thus kept California within the national fold, it did so only barely, by a 4-3 vote. The three dissenting justices would have deferred to the administrative agency charged with interpreting the FEHA, which for many years had treated the inability to perform as an affirmative defense, rather than as part of the plaintiff’s case in chief.76 6.3.4 Drug testing California’s Compassionate Use Act of 1996 legalized, for purposes of California law, the medical use of marijuana pursuant to a physician’s prescription.77 The Act does not address whether California employers must accommodate an applicant or employee whose physician has prescribed marijuana to treat a potentially disabling condition such as cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, or migraine.78 The
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