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Navigate “On the Magic Carpet Ride” The Interactive Process Under A.D.A. and F.E.H.A. Timothy L. Davis, Esq. Burke, Williams & Sorensen, LLP 2440 W. El.

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Presentation on theme: "Navigate “On the Magic Carpet Ride” The Interactive Process Under A.D.A. and F.E.H.A. Timothy L. Davis, Esq. Burke, Williams & Sorensen, LLP 2440 W. El."— Presentation transcript:

1 Navigate “On the Magic Carpet Ride” The Interactive Process Under A.D.A. and F.E.H.A. Timothy L. Davis, Esq. Burke, Williams & Sorensen, LLP 2440 W. El Camino Real, Suite 620 Mountain View, California Steve Monjaras Monjaras & Wismeyer Group 130 Pine Avenue, Suite 201 Long Beach, California monjaraswismeyergroup

2 BEFORE

3  F.E.H.A. and ADA Basic Overview  What is required by Law  What is a Disability under F.E.H.A.  Addressing Work Restrictions  Essential Functions & Essential Functions Job Analysis  Interactive Process  Workers’ Compensation and the Interactive Process  Questions & Answer Session What We Will Cover:

4 AFTER

5 Recognizing the Signs on the Skyways of Employment Laws  Primary Laws  ADA – The Americans with Disabilities Act  FEHA – The Fair Employment & Housing Act  Related Laws  FMLA – The Family Medical Leave Act  CFRA – The California Family Rights Act  PDL – Pregnancy Disability Leave  PFL – Paid Family Leave  SDI – State Disability Insurance  Workers’ Compensation  Internal Policies, MOUs, CBAs, past practices

6 Navigating the Disability Skyway - Employment Discrimination  ADA: Employment-related provisions cannot discriminate against a qualified individual (employee or applicant) with a physical or mental disability who is capable of performing the essential functions of the position with or without reasonable accommodation.  FEHA: Employment-related provisions cannot discriminate against an individual (employee or applicant) with a physical disability, mental disability, or medical condition.

7 “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 Legislative Intent 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.

8 Employers have an affirmative duty to reasonably accommodate a disabled employee or applicant in order to: 1.Ensure equal opportunity in the application process 2.Perform the position’s essential functions 3.Enjoy benefits and privileges equal to those enjoyed by non-disabled employees. The duty arises as soon as the employer is aware of the disability – regardless of whether the employee or applicant has requested an accommodation. FEHA Legislative Intent

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10 Navigating the Disability Skyway - Who is Disabled? FEDERAL (ADA) A person is disabled if he/she: CALIFORNIA (FEHA) A person is disabled if he/she: Has a physical or mental impairment that substantially limits one or more of his/her major life activities; OR Has a record of such impairment; OR Is regarded as having such an impairment. Has a physical or mental impairment that limits one or more of his/her major life activities; OR Has a history of such impairment; OR Is regarded as having such an impairment.

11 Navigating the Disability Skyway - Who is Disabled?  The F.E.H.A. is More Protective than the ADA  Limits vs. Substantially Limits:  Lower standard in California – the disability makes the achievement of the major life activity more difficult.  Mitigating measures (glasses) are not considered in determining if a condition limits a major life activity in California.

12 Navigating the Disability Skyway - Who is Disabled?  Major Life Activity:  A major life activity are those activities that are of central importance to daily life (caring for oneself, walking, breathing, sitting, reading, sleeping, interacting with others, etc.)  Under the FEHA, it includes physical, mental, and social activities.  Working is a major life activity under both laws, but in California the individual is limited if he/she is limited in performing the requirements of a single, particular job. The ADA has a higher standard (class of jobs or broad range of jobs).

13 Navigating the Disability Skyway - What is a Physical Disability? A physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss that affects one or more body systems and limits the ability to perform a major life activity. Examples:  Orthopedic, visual, speech, and hearing impairments  Cerebral palsy, muscular dystrophy, or multiple sclerosis  AIDS / HIV  Cancer (medical condition under FEHA)  Heart disease  Impotence  Carpal tunnel syndrome  Diabetes  Asthma  Allergic reactions  Irritable bowel syndrome

14 Navigating the Disability Skyway - What is a Mental Disability? Any of the following can be a mental disability if it limits a major life activity:  Dyslexia and other learning disabilities  Attention deficit disorder  Depression and stress (if it results from a physiological or mental disorder)  Bipolar disorder  Obsessive compulsive disorder  Intellectual disabilities  Post-traumatic stress

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16 “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) Humphrey v. Memorial Hospital Assn. Eligible Employee??

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19 Flying Under the Influence Alcoholism Alcoholism may be a disability if it limits major life activities. An employee who abuses alcohol may be held to the same performance and job standards as other employees. Drug Addiction Current use of or addiction to illegal drugs is not a disability under the ADA or the FEHA. A former addict may be disabled if the addiction limits a major life activity and:  He/She has successfully completed drug rehabilitation OR is participating in a rehabilitation program and is no longer using illegal drugs.

20 Navigating the Disability Skyway - What is NOT a Disability?  These conditions are expressly excluded from the definition of disability: Sexual behavior disorders Kleptomania Pyromania Illegal use of controlled substances or drugs Compulsive gambling Gender identity disorders Disorders resulting from current drug use

21 Navigating the Disability Skyway - What is NOT a Disability? These conditions have been determined to not be disabilities: Age Height, weight, or muscle tones within normal ranges Physical characteristics (eye and hair color, left-handedness) Pregnancy Personal traits that are not the result of a mental disability (poor judgment, quick temper) Temporary, non-chronic injuries (broken limbs, sprains, flu, etc.)

22 Employers cannot discriminate against an employee or applicant who has a record of a disability or who has been misclassified as having a disability.  Includes person who has recovered from a disability. Employers cannot discriminate against an employee or applicant that it regards as having a disability even though no disability exists.  Includes a condition that does not limit a major life activity. Navigating the Disability Skyway - Regarded As Disabled?

23 Navigating the Disability Skyway - Qualified Individual A.D.A. and F.E.H.A. Only Protect Qualified Individuals Burden is on the applicant or employee to prove he/she is qualified to perform the essential functions with or without a reasonable accommodation. It is not unlawful to draw a distinction on the basis of disability if that disability renders an employee unqualified, with or without reasonable accommodation, to perform the essential functions of the position.

24 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. How It Must Be Done Source: Fair Employment and Housing Act-FEHA (Government Code § 12940(n)

25  Temporarily Disabled (Short Term)  Permanently Disabled (Long Term)  Perception of EE/Applicant as Disabled HAND OUT What Triggers FEHA monjaraswismeyergroup

26 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) Triggers monjaraswismeyergroup

27 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” Triggers monjaraswismeyergroup

28 Bradley v. CA. Department of Corrections The Appeals Court concluded that an employee who is assigned to a worksite by a temporary agency has standing under FEHA to sue the site employer. This case settled in 2008 for $744,000 (305,000) Does a Temp. have FEHA RIGHTS? monjaraswismeyergroup

29 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. monjaraswismeyergroup

30 IP 5 Step Process Step 1: Determine eligibility - Who Employee request (form or verbal) Work Comp knowledge Perception of disability monjaraswismeyergroup

31 IP 5 Step Process Step 2: Obtain necessary documents Medical report(s): Clear functional limitations/work restrictions NO condition / diagnosis (employer) Essential Functions Job Analysis  Include actual essential functions with history of performance  Include regular and reliable attendance  Include “soft skills” / mental demands monjaraswismeyergroup

32 Work Restrictions All medical reports with work restrictions need to be addressed and considered during the interactive meeting. Both Industrial and Non-Industrial work restrictions need to be individually discussed Do not just dismiss a PTP report over an AME report Workers’ Comp and F.E.H.A. have different requirements Consider the most restrictive medical report Do NOT doctor shop Ask employee

33 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”

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

35 “No lifting and or carrying over 10 lbs.” “No public contact” “No work with Jenny Doe, must be transferred” “Must be transferred to County 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. REQUEST REASONABLE ACCOMMODATIONS

36 “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

37 IP 5 Step Process Step 2: Obtain necessary documents If you need clarification, write to the doctor and ask for clarification or as EE to assist in getting medical clarification. You can only ask for clarification of work restrictions / limitations. DO NOT ASK for condition or diagnosis. Document your path and attempt to resolve monjaraswismeyergroup

38 IP 5 Step Process Step 2: Obtain necessary documents Essential Functions Job Analysis  Identify actual essential functions with history of performance  Include regular and reliable attendance  Breakdown of physical demands  Include “soft skills” / mental demands HAND OUT IDENTIFYING ESSENTIAL FUNCTIONS monjaraswismeyergroup

39 IP 5 Step Process Step 3: Assemble “right” people together Human Resources Manager/designee WC Manager/designee (if WC) Position’s manager and/or supervisor Employee Employee representative of choice Facilitator/ note taker monjaraswismeyergroup

40 Step 3: Continued Short – term / temporary restrictions  Temporary Light Duty/Transitional Duty Program Long – term / permanent restrictions  Reasonable Accommodation Program IP 5 Step Process monjaraswismeyergroup

41 IP 5 Step Process Step 4: Engage, Interact and Explore Together - Ensure applicant/employee is aware of process - Meeting with applicant/employee - Seek applicant/employee opinions and interests - Consult with professionals in the field for assistance to identity reasonable accommodation options - Use Resources: consultants, claims professionals, legal team YES, applicant/employee must be invited to participate face to face monjaraswismeyergroup

42 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 Transfer or reassignment to a vacant position (lateral or demotion) What constitutes Reasonable Accommodation Modifying examinations Changing policies Paid / Unpaid Leave monjaraswismeyergroup

43 Change to facility / Work Area Job restructuring (nonessential functions only) Modified work schedules Acquisition of equipment and/or devices Leave of absence (paid or unpaid) Providing interpreters or readers Potential Reasonable Accommodations: monjaraswismeyergroup

44 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 Reasonable Accommodation  Source: Raine v. City of Burbank 1/2006 monjaraswismeyergroup

45  Creating a new job  Converting a full-time position to part-time  Creating a light duty position  Removing the essential functions  Promotion  Assigning a helper  Holding a position open indefinitely monjaraswismeyergroup Unreasonable Accommodations:

46 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 Reasonable Accommodation monjaraswismeyergroup

47 Navigating the Disability Skyway - Unqualified Due to Direct Threat Direct Threat to Self or Others Employers may screen out individuals whose job performance would endanger their own health or safety or the health and safety of others. Consider the following:  Duration of the risk  Nature and severity of the potential harm  Likelihood that the potential harm will occur  Imminence of the potential harm

48 Navigating the Disability Skyway - Unqualified Due to Direct Threat Direct Threat to Self or Others (continues) Employer has the Burden of Proving this defense  The risk must be specific  No blanket exclusion of disabled persons based on direct threat is permitted Does not alleviate the obligation to determine whether a reasonable accommodation would alleviate the risk and permit the employee to perform the essential functions

49 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 Reasonable Accommodation Source: Fair Employment and Housing Act-FEHA (Government Code § 12940), Greene v. Countrywide Home Loans, 10/2007 monjaraswismeyergroup

50 Reasonable Accommodation monjaraswismeyergroup Undue Hardship  The employer is not required to provide a reasonable accommodation if by so doing would present an undue hardship on the operation of the business. BE CAREFUL TO USE THIS DEFENSE

51 Reasonable Accommodation monjaraswismeyergroup  Undue Hardship (Continue) An undue hardship is an action that would require significant difficulty or expense when considered in light of:  The accommodation’s nature and cost  Overall financial resources of the employer  Overall size, structure & function of the workforce  Number, type & location of facilities  Geographic separateness and administrative and fiscal relationship of the facility in question and the entity as a whole  EXAMPLE: An extended leave of absence can cause an undue hardship if it is requiring the employer to hire a temporary worker, if it is requiring other employees to take on significantly increased duties, etc.

52 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  The law does not require you offer all request for Reasonable Accommodation monjaraswismeyergroup

53 IP 5 Step Process Step 5: Process and Results - Document notices and invites - Document all discussions and outcomes - Get signatures from all participants at meetings - Document results - Send letters to close out process - Tie up all loose ends monjaraswismeyergroup

54 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 Documentation Note monjaraswismeyergroup

55 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 Potentially in excess of company policy Reasonable Accommodation monjaraswismeyergroup

56  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 HAND OUT – INTERACTIVE MEETING SUMMARY OUTLINE Providing Accommodation monjaraswismeyergroup

57 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 effort at a later time;  No appropriate vacant positions available No Accommodation Made

58 Arriving at Your Destination - Interactive Process Common Questions  How long does the interactive process take?  Who should participate in the interactive process?  What is the employee’s role in the interactive process?  How should I document the interactive process?

59 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) monjaraswismeyergroup

60 Arriving at Your Destination - Interactive Process Common Questions  What if the employee does not participate?  What if the employee wants a different accommodation than the employer?  What if the employee rejects the offered accommodation?  What if the accommodation stops working?

61 No Accommodation  Exhaust all paid leaves  Exhaust all available state and federal leaves (FMLA/CFRA) and unpaid leaves  Follow CBA / Personnel Rules  Other: Handbook monjaraswismeyergroup

62 Labor Code Section 4658: 15 percent “Disability” under FEHA and “permanent disability” under WC do NOT mean the same thing Can be 100% PD and still return to work at wages received prior injury  Cuiellette Vs. City of Los Angeles Workers’ Compensation Note monjaraswismeyergroup

63 Labor Code Section 132a prohibits discrimination on basis of workers’compensation Does not have to be INTENTIONAL discrimination No violation of 132a if employer reasonably believes employee no longer can perform his job  Interactive Process will document the above, if done correctly, and protect from a 132a WC 132a Claim monjaraswismeyergroup

64 FEHA Claims FEHC REMEDIES  Back pay  Out of pocket losses  Affirmative relief  Training  Policy changes  Emotional distress  Limited to $150,000  Administrative fines SUPERIOR COURT  Award, plus:  Unlimited emotional distress  Exposure to unlimited punitive damages  Prevailing party may recover legal fees

65 Defensive Driving – How to Avoid Exposure  Written Policy  Accurate Job Descriptions  Performance Evaluations  Avoid mention of medical conditions, disabilities, and amount of sick leave taken.  Educate Supervisors  Good Faith Interactive Process  Document Everything  Maintain Confidentiality  Avoid Medical Examinations of Employees  Only permitted when it is job related and consistent with business necessity  Safeguard Against Retaliation

66 Job Accommodation Network – JAN Department of Fair Employment & Housing (DFEH) Fair Employment Housing Commission (FEHC) Defense Counsel Labor Law Attorney Colleagues at a similar organization Claims Team Human Resource Consultants GREAT RESOURCES

67 Sample cases:  EEO v. Bank 2.2 Million  City of Anaheim 5.25 Million  Wysinger v. ACSC, 2.0 Million  Alberigi v. Sonoma County, 6.5 Million  Bradley v. CA Department of Corrections, $788,000  Green v. State of California, $3 Million  Wrysiniski v. Agilent Technologies, 6.1 Million  Most cases settle and costs are unknown Case Law

68 THANK YOU  Timothy L. Davis, Esq.  Burke, Williams & Sorensen, LLP  2440 W. El Camino Real, Suite 620  Mountain View, California  Steve Monjaras Monjaras & Wismeyer Group 130 Pine Avenue, Suite 201 Long Beach, California monjaraswismeyergroup

69 THANK YOU!! FOR JOINING US!!

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