1 LEGAL EXPOSURE REDUCTION County Supervisors’ Role and Responsibilities Under ADA & FEHA For Purposes of Reasonable Accommodation Present by: Steve Morris, County Counsel Cathy Stein-Romo, Chief Executive Office, Risk Management Maryetta Hall, Department of Human Resources

2 PURPOSE The County of Los Angeles has a population of over 10 million people receiving services from 37 County Departments with over 100,000 County employees. This workshop was developed in response to a Board of Supervisors Directive. In the course of having to approve several very costly legal settlements, the Board determined that LACO supervisors would benefit from training in effective management techniques and their responsibilities as supervisors/managers under the Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA).

3 Legal Exposure Reduction and Reasonable Accommodation under ADA/FEHA Define supervisors’ role in reducing legal exposure in ADA/FEHA employment cases Define supervisors’ role in reducing legal exposure in ADA/FEHA employment cases Distinguish differences between the ADA and FEHA Distinguish differences between the ADA and FEHA Explain why ADA/FEHA litigation is on the rise Explain why ADA/FEHA litigation is on the rise Discuss the factors driving costs of employment litigation Discuss the factors driving costs of employment litigation Explain the strategy to manage risk through proper documentation Explain the strategy to manage risk through proper documentation Apply County policies and guidelines relating to disability management Apply County policies and guidelines relating to disability management

4 Describe and define appropriate terms and acronyms relating to ADA/FEHA and disability management Describe and define appropriate terms and acronyms relating to ADA/FEHA and disability management Recognize the triggers for engaging in the interactive process Recognize the triggers for engaging in the interactive process Define reasonable accommodation Define reasonable accommodation Describe the important steps to the Interactive process meeting Describe the important steps to the Interactive process meeting Learn how to effectively document the interactive process Learn how to effectively document the interactive process Utilize the resources available to assist supervisors in managing employees with disabilities Utilize the resources available to assist supervisors in managing employees with disabilities

5 RISK MANAGEMENT TRAINING FOR SUPERVISORS AND MANAGERS OVERVIEW OF TRAINING PROGRAM OVERVIEW OF TRAINING PROGRAM

6 EMPLOYMENT LITIGATION IS BIG BUSINESS Documentation is crucial to management of County workplace. Documentation is crucial to management of County workplace. We call it “evidence” in court! We call it “evidence” in court!

7 DOCUMENTATION IS ESSENTIAL IN BOTH: Complying with accommodation requirements in disabilities law (ADA/FEHA). Complying with accommodation requirements in disabilities law (ADA/FEHA). Performance management, including progressive discipline, when necessary. Performance management, including progressive discipline, when necessary.

8 DOCUMENTATION IS A LIFE SAVER !

9 Part I THE LEGAL LANDSCAPE Everything You Always Wanted to Know About ADA/FEHA Litigation* *…..but were afraid to ask…..

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11 AN ADA PRIMER

12 Under the Americans with Disabilities Act (“ADA”) and California’s, Fair Employment and Housing Act (“FEHA”), employers must engage in a prompt Interactive Process to explore Reasonable Accommodation of an employee’s or applicant’s known disability.

13 This is an express requirement under FEHA.

14 Failure to show prompt Interactive Process is a common violation, and is easily recognized by investigating enforcement agencies:  U.S. Equal Employment Opportunities Commission (EEOC) for Federal ADA  Department of Fair Employment and Housing (DFEH) for State of California ADA and FEHA

How Supervisors Can Help Or Hurt Missing signals for interactive process Missing signals for interactive process Mixing ADA and performance issues Mixing ADA and performance issues Not being reasonable in accommodation Not being reasonable in accommodation

16 Employer must consider all information provided but does not have to offer the exact accommodation requested so long as some Reasonable Accommodation is offered and clearly documented. Employer must consider all information provided but does not have to offer the exact accommodation requested so long as some Reasonable Accommodation is offered and clearly documented. Both employer AND employee must interact in good faith. Both employer AND employee must interact in good faith.

To be reasonable, an accommodation must be effective. That means, the reasonable accommodation must enable the employee to perform the essential functions of the job. To be reasonable, an accommodation must be effective. That means, the reasonable accommodation must enable the employee to perform the essential functions of the job.

18 The return of an employee with work restrictions (medical certification/doctor’s note) is tantamount to a request for Reasonable Accommodation and must trigger a prompt Interactive Process. The return of an employee with work restrictions (medical certification/doctor’s note) is tantamount to a request for Reasonable Accommodation and must trigger a prompt Interactive Process. ADA/FEHA Requirement of timely Interactive must never be delayed by the Workers’ Compensation process. They are two independent legal schemes. ADA/FEHA Requirement of timely Interactive must never be delayed by the Workers’ Compensation process. They are two independent legal schemes.

Interactive process is not a one time meeting; it is an ongoing process. Interactive process is not a one time meeting; it is an ongoing process. Civil Service Rule 9.08 Civil Service Rule 9.08 County Employee Retirement Law of 1937 (“CERL”) County Employee Retirement Law of 1937 (“CERL”)

20 3 Questions 1. Why are there so many ADA/FEHA lawsuits? 2. Why is ADA/FEHA litigation so expensive? 3. How Can the County win a jury trial?

21 #1 Why Are There So Many ADA/FEHA Lawsuits ?

22 County is a BIG employer, therefore a big target County is a BIG employer, therefore a big target Huge growth in ADA/FEHA cases: The Word is Out! Huge growth in ADA/FEHA cases: The Word is Out! Fact intensive cases go to jury Fact intensive cases go to jury Successful plaintiffs get attorney’s fees Successful plaintiffs get attorney’s fees Why Are There So Many Lawsuits ?

23 #2 Why is ADA/FEHA Litigation So Expensive?

24 Successful plaintiffs get attorney’s fees Successful plaintiffs get attorney’s fees ADA/FEHA cases are fact intensive ADA/FEHA cases are fact intensive Long employment history may be involved Long employment history may be involved Cases are document driven: personnel files may be extensive Cases are document driven: personnel files may be extensive Complex Interaction with other Laws (FMLA, Workers’ Compensation) Complex Interaction with other Laws (FMLA, Workers’ Compensation) E – Discovery E – Discovery Personal liability of supervisors Personal liability of supervisors

25 How many $100,000 decisions have you made today? How many $100,000 decisions have you made today? DECISION TIME

26 #3 How Can The County Win A Jury Trial?

27 The Challenges Jurors tend to be employees, not employers Jurors tend to be employees, not employers Popular culture Popular culture Negative images Negative images Employment law is complex Employment law is complex Things juries hate Things juries hate Medical confidentiality Medical confidentiality The perils of The perils of

28 The Perils of How can I ruin my reputation and Cost the County money? “ We can’t let these cheating employees and their doctors get away with this”

29 Important Tips Document the Interactive Process Document the Interactive Process All documents should tell a story All documents should tell a story Be prompt – timeliness is critical Be prompt – timeliness is critical Be nice – “How can I help?” Be nice – “How can I help?” Be Consistent Be Consistent Keep them on the job Keep them on the job Look for early resolution – Be proactive Look for early resolution – Be proactive How County Can Win a Jury Trial

30 Legal Documentation A written record of events is the best evidence of what occurred, and the record can be requested for identification and disclosure in litigation. Documentation is most commonly used as evidence:  To tell the story of what occurred.  To document that a specific decision was made objectively, consistently and in accordance with all County policies.  To refresh the memory of a witness  To provide a trigger to follow-up by including a Plan of Action  To establish knowledge, notice, intent, and good- faith.  Helps keep ADA/FEHA separate from performance issues.

31 Exercise I Employee has twice asked for and received an ergonomic chair. The employee is now missing a lot of work through unexpected absences and tardiness. When you try to address attendance, the employee says they need another chair and special lamp and keyboard. What do you do?

32 Which chair would you buy? $300 $300,000

33 Break