1. WORK RESTRICTIONS & REASONABLE ACCOMODATIONS
County of Los Angeles
RETURN-TO-WORK SEMINAR
July 19, 2012

2. F.E.H.A.
BASICS

3. FEHA Mandates
Employers must engage in a good faith interactive process with employees who have disabilities to determine the appropriate reasonable accommodations that might overcome the employee’s/applicant’s job limitations (Government Code Section 12940(n).)
The duty to engage in this process is a stand-alone statutory requirement
An employer will violate the statute by failing to proceed with the process, even if accommodation is not possible

4. Reasonable Accommodation
What FEHA Requires
FEHA Mandates
Reasonable Accommodation
“Once a disability that is protected under the law is
established, an employer is obligated to provide a
reasonable accommodation unless the
accommodation would represent an undue
hardship to the business operation.”
For candidates and employees
Source: Fair Employment and Housing Act-FEHA (Government Code § 12940(n)

5. FEHA Mandates a Good Faith Interactive Process
How It Must Be Done
FEHA Mandates a Good Faith Interactive Process
“Employers must engage in a good faith interactive
process with employees and candidates who have
disabilities to determine the appropriate reasonable
accommodations that might overcome the
employee’s/applicant’s job limitations.”
Stand alone statutory requirement.
Source: Fair Employment and Housing Act-FEHA (Government Code § 12940(n)

6. FEHA Legislative Intent
“To strengthen California law in areas where it is
weaker than the ADA and to retain California law
when it provides more protection for individuals
with disabilities.”
FEHA provides protections in the area of disabilities independent from those in the federal ADA
CA law contains broad definitions of physical disability, mental disability and medical condition
The legislature affirms the importance of the interactive process between the employee and the employer in determining a reasonable accommodation.

7. FEHA Definition of a Disability
Physical or mental medical condition that “limits… a major life activity.”
“Limits” = “makes the achievement of a major life activity difficult”
Government Code Sections 12962(i),(k)

8. FEHA Definition of a Disability
What is not a disability:
Sexual behavior disorders
Kleptomania
Pyromania
Illegal use of controlled substances or drugs
Compulsive gambling

9. What Triggers FEHA Temporarily Disabled (Short Term)
Permanently Disabled (Long Term)
Perception of EE/Applicant as Disabled

10. Triggers Perception of disability: Change in performance / behavior
Rumors circulating around employer sites
Employer engaged in progressive discipline where employer or employee believe that a medical condition or disability may be one cause of performance issue (i.e. attendance problems, stamina, consistency of work etc.)
Employee requests “help” or informally asks for an “accommodation”

11. Triggers Before any negative employment action is
taken by the employer against a disabled /
perceived disabled candidate or employee:
Engage, and
Provide accommodations, if reasonable:
Modified Work
Alternate work
Extended Leave of Absence (Unpaid)

12. Eligible Employee??
“Conduct resulting from the disability is part of the disability and not a separate basis for termination.”
Gambini v. Total Renal Care, Inc. (9th Cir. 2007)
Dedekian v. Central West School District (10/07)

13. No End to Interactive Process
The duty to engage in the interactive process ends when…?
NEVER
Humphrey v. Memorial Hospital Assn., 239 F.3d 1128 (9th Cur. 2001)

14. Reasonable Accommodation
What constitutes Reasonable Accommodation
Any appropriate measure that would allow the
applicant or employee with a disability to perform
the essential functions of the job, such as:
- Facility modifications
- Schedule changes
- Equipment purchases
- Modifying examinations
- Changing policies

15. Reasonable Accommodation
An employer is not required to:
Lower quality or production standards
Provide personal use items (such as glasses)
Create a new position*
Displace (bump/layoff) other employees
*Source: Raine v. City of Burbank 1/2006

16. Reasonable Accommodation
No Accommodation is required if:
Essential functions of the job cannot be performed
The employee poses a direct threat to him/herself or co-workers
Accommodation would create an undue hardship

17. Reasonable Accommodation
Direct Threat Defined: Employer is not
obligated to offer accommodation to an
employee/applicant who poses a direct threat
to him/herself or co-workers
Performing work would re-injure/ put at risk
Condition that results in threats or violence
Source: Fair Employment and Housing Act-FEHA (Government Code § 12940), Greene v. Countrywide Home Loans, 10/2007

18. Reasonable Accommodation
Undue Hardship Defined: Undue hardship is a
significant difficulty or expense caused by an
accommodation, such as the:
Nature and cost of the accommodation needed
Overall financial resources of the facility making the reasonable accommodation
Effect on expenses and resources of the facility
Impact of the accommodation on the operation of the facility
Note: Be very careful of using this as a defense.

19. Reasonable Accommodation
When selecting the accommodation to
implement, make sure to:
Select and implement the accommodation that is more appropriate for both employer and employee
Consider the employee’s preference

20. Reasonable Accommodation
Offer of Modified Work
Current classification, performing all essential functions
WC considers 85% wages (LC (b))
Offer of Alternate Work/Reassignment
Minimally qualified
Not promotional
WC considers 85% wages, reasonable commuting distance (LC (b))
FEHA does not require minimum wage to be considered a reasonable accommodation
Offer of an Extended Leave of Absence
When temporarily disabled
Consider even it in excess of current policy

21. Providing Accommodation
Document, Document, Document
Clarify length of accommodation, long term or temporary with revisits
Establish triggers for reconvening meeting participants
Clarify issues that may make accommodation no longer reasonable
Work Comp = complete DWC-AD forms

22. No Accommodation Made
If no accommodation is possible, employer must be able to PROVE and DOCUMENT one of the following:
Essential functions could not be performed;
Accommodation options created a direct threat or undue hardship;
Extended leave of absence would not support a return to work at a later time;
No appropriate vacant positions available

23. “Good Faith Interactive Process”
What constitutes the
“Good Faith Interactive Process”
All activities that are necessary to properly address the potential need for Reasonable Accommodation by an applicant or employee, including:
Every verbal and written communication with injured applicant/employee
Meetings
Actions, etc.

24. Documentation Note Written meeting notes should include:
Purpose of meeting / Reason for IP
Documents relied on
Summaries of discussions between all parties relating to:
Modified work
Alternate work
Extended leave of absence (unpaid)
Summarize outcomes or next steps
Signatures of all attending parties

25. AT MEETING REMEMBER
W.E.C.A.N.

26. W – Work Restrictions
E – Effected Essential Functions
C – Causes and Discussion
A – Accommodations / Actions Taken
N – Notes / Documentation

27. W – Work Restrictions E – Effected Essential Functions
C – Causes and Discussion
A – Accommodations / Actions Taken
N – Notes / Documentation

28. REQUEST FOR REASONABLE ACCOMMODATION(S)
SORT IT OUT!!!!
WORK RESTRICTIONS
Vs.
REQUEST FOR REASONABLE ACCOMMODATION(S)

29. Work Restrictions Vs. a Request for Reasonable Accommodations
“no lifting and or carrying over 10 lbs.”
“no public contact”
“cannot work with Jenny Doe, must be transferred”
“must be transferred to DPSS LA Office #10”
“Needs an office with windows”
“return to work handling only 10 cases”
“Unable to handle full case load”
“unable to drive over 5 miles per day”
“no typing over 20 minutes per hour”

30. Understand Work Restriction,
Get Clear Picture

31. E – Effected Essential Functions/Job Duties
W – Work Restrictions
E – Effected Essential Functions/Job Duties
C – Causes and Discussion
A – Accommodations / Actions Taken
N – Notes / Documentation

32. IDENTIFY ESSENTIAL FUNCTIONS
Ask employee to address which Essential Functions are exceeding employee’s current tolerance for “emotional / stress related work restrictions”
Write down the identified essential functions in conflict with work restrictions and need for reasonable accommodation.
Examples:
Case Management, number of cases
Phone Work
Field work; commute, traffic, drive
Meeting and Training

33. C – Causes and Discussion
W – Work Restrictions
E – Effected Essential Functions
C – Causes and Discussion
A – Accommodations / Actions Taken
N – Notes / Documentation

34. Reasonable Accommodation
Identify the conflict(s)/triggers
Ask employee what are areas of concern
Identify causes
Design and Implement Reasonable Accommodations
Brainstorm for solutions
Listen to employee’s preference
Select best intervention to curtail stress factor
Implement the Reasonable Accommodations
Who? When? How?
Document agreements / actions

35. A – Accommodations / Actions Taken
W – Work Restrictions
E – Effected Essential Functions
C – Causes and Discussion
A – Accommodations / Actions Taken
N – Notes / Documentation

36. No Accommodation Made
If no accommodation is possible, employer must be able to PROVE and DOCUMENT one of the following:
Essential functions could not be performed
Accommodation options created a direct threat or undue hardship
Extended leave of absence would not support a return to work at a later time
No appropriate vacant positions available

37. N – Notes / Documentation
W – Work Restrictions
E – Effected Essential Functions
C – Causes and Discussion
A – Accommodations / Actions Taken
N – Notes / Documentation

38. Providing Accommodation
Document, Document, Document
Clarify length of accommodation, long term or temporary with revisits
Establish triggers for reconvening meeting participants
Clarify issues that may make accommodation no longer reasonable
Work Comp = complete DWC-AD forms

39. Complicated Work Restrictions

40. MULTIPLE DOCTOR NOTES DR. SMITH - JUNE 3, 2012
“UNABLE TO LIFT 4 LBS; NO PHONE WORK; NO TYPING >15 MIN. PER HOUR”
DR. GONZALEZ - JULY 8, 2012
“UNABLE TO LIFT 5 LBS; NO PROLONGED SITTING UNTIL 09/01/12”
DR. KAWADA Q.M.E. – APRIL 15, 2012
“UNABLE TO LIFT 25 LBS; MAY TYPE A MAX. OF 45 MINUTES PER HOUR”
DR. GONZALEZ – SEPTEMBER 1, 2012
“RETURN TO FULL DUTY; NO WORK RESTRICTIONS”
DR. WISMEYER, AME – DECEMBER 1, 2012
“RELEASED TO FULL DUTY; NO RESTRICTIONS”

41. FEHA Definition of a Disability
“NO PUBLIC CONTACT”
“REDUCED CASE LOAD”
“REDUCE COMMUTE”

42. REQUEST FOR REASONABLE ACCOMMODATION(S)
SORT IT OUT!!!!
WORK RESTRICTIONS
Vs.
REQUEST FOR REASONABLE ACCOMMODATION(S)

43. Work Restrictions Vs. a Request for Reasonable Accommodations
“no lifting and or carrying over 10 lbs.”
“no public contact”
“No work with Jenny Doe, must be transferred”
“must be transferred to DPSS LA Office #10”
“Needs an office with windows”
“return to work handling only 10 cases”
“Reduce case load by 20%”
“unable to drive over 5 miles per day”
“no typing over 20 minutes per hour”

44. …She may continue her usual and customary occupation
…She may continue her usual and customary occupation. However, it is recommended that her work activities be modified to only one evaluation and testing per day with alternating periods of sitting, standing, moving about, and writing reports…
…Must travel within comfort zone…
…Please allow Mary to spread / divide work hours over 5 days instead of 4 days. Maximum 6 – 7 work hours / day with 1 hour break every 3 – 4 hours…
“…must have a 20% reduction in work for one year starting 09/12/12 to end of academic year 2013…”

45. FEHA Definition of a Disability
“needs to be assigned to a private office with an air humidifier”
“no exposure with perfumes, fabric softeners, deodorants”
“…I recommend that Mr. Doe return to work January 8, with the accommodation that he be changed to a different department where he does not have to work for Carol King…”
“…I recommend that Mr. Doe return to work and that he be reassigned to a different position under a different supervisor…”
“…Pt. must be transferred to work without Mgr. Carol King interference at all…

46. TOOLS YOU
CAN USE

47. GREAT RESOURCES Job Accommodation Network – JAN
Department of Fair Employment & Housing (DFEH)
Fair Employment Housing Commission (FEHC)

48. Monjaras & Wismeyer Group, Inc.
THANK YOU
Monjaras & Wismeyer Group, Inc.
Providing comprehensive disability compliance consulting services throughout California.
Steve P. Monjaras
Ph: