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

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Presentation on theme: "WORK RESTRICTIONS & REASONABLE ACCOMODATIONS County of Los Angeles RETURN-TO-WORK SEMINAR July 19, 2012."— Presentation transcript:

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 employees/applicants 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 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 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 employees/applicants 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 (9 th Cur. 2001)

14 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 Reasonable Accommodation - 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 employees preference

20 Reasonable Accommodation 1.Offer of Modified Work Current classification, performing all essential functions WC considers 85% wages (LC (b)) 2.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 3.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 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: 1.Purpose of meeting / Reason for IP 2.Documents relied on 3.Summaries of discussions between all parties relating to: –Modified work –Alternate work –Extended leave of absence (unpaid) 4.Summarize outcomes or next steps 5.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 SORT IT OUT!!!! WORK RESTRICTIONS Vs. REQUEST FOR REASONABLE ACCOMMODATION(S)

29 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 Work Restrictions Vs. a Request for Reasonable Accommodations

30 Understand Work Restriction, Get Clear Picture

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

34 Reasonable Accommodation 1.Identify the conflict(s)/triggers Ask employee what are areas of concern Identify causes 2.Design and Implement Reasonable Accommodations Brainstorm for solutions Listen to employees preference Select best intervention to curtail stress factor 3.Implement the Reasonable Accommodations Who? When? How? Document agreements / actions

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

43 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 Work Restrictions Vs. a Request for Reasonable Accommodations

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


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