Navigate “On the Magic Carpet Ride” The Interactive Process Under A.D.A. and F.E.H.A. Timothy L....

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, LLP2440 W. El Camino Real, Suite 620Mountain View, California 94040650.327.2672

Steve MonjarasMonjaras & Wismeyer Group130 Pine Avenue, Suite 201

Long Beach, California 90802877.984.7969

monjaraswismeyergroup

BEFORE

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:

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

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.

“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.

Employers have an affirmative duty to reasonably accommodate a disabled employee or applicant in order to:

1. Ensure equal opportunity in the application process2. Perform the position’s essential functions3. 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

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.

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.

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).

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

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

“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??

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.

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

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.)

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.

Regarded As Disabled?

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.

FEHA Mandates aGood Faith Interactive Process

“Employers must engage in a good faith interactive

process with employees and candidates who havedisabilities 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)

Temporarily Disabled (Short Term)

Permanently Disabled (Long Term)

Perception of EE/Applicant as Disabled

HAND OUT

What Triggers FEHA

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

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

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?

Interactive ProcessWhat 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

IP 5 Step ProcessStep 1: Determine eligibility - Who

• Employee request (form or verbal)• Work Comp knowledge• Perception of disability

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

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

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”

SORT IT OUT!!!!

WORK RESTRICTIONS

REQUEST FOR REASONABLE ACCOMMODATION(S)

• “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

• “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

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 resolvemonjaraswismeyergroup

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

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

Step 3: Continued

Short – term / temporary restrictions Temporary Light Duty/Transitional Duty Program

Long – term / permanent restrictions Reasonable Accommodation Program

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

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 constitutesReasonable

Accommodation

• Modifying examinations

• Changing policies• Paid / Unpaid Leave

• 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:

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 1/2006monjaraswismeyergroup

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

Unreasonable Accommodations:

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

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

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

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

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

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.

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 Accommodationmonjaraswismeyergroup

IP 5 Step ProcessStep 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

Written meeting notes should include:1.Purpose of meeting / Reason for IP2.Documents relied on3.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

1. Offer of Modified Work• Current classification, performing all essential functions• WC considers 85% wages (LC 4658.1(b))

2. Offer of Alternate Work/Reassignment • Minimally qualified• Not promotional• WC considers 85% wages, reasonable commuting distance

(LC 4658.1(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

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

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

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?

No End to Interactive Process

The duty to engage in the interactiveprocess ends when…?

Humphrey v. Memorial Hospital Assn., 239 F.3d 1128(9th Cur. 2001)

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?

No Accommodation

Exhaust all paid leaves Exhaust all available state and federal leaves (FMLA/CFRA) and unpaid leaves

Follow CBA / Personnel Rules

Other: Handbook

• 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

• 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

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

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

• 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

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

THANK YOU

Timothy L. Davis, Esq.

Burke, Williams & Sorensen, LLP 2440 W. El Camino Real, Suite

620 Mountain View, California 94040 650.327.2672

Steve MonjarasMonjaras & Wismeyer Group130 Pine Avenue, Suite 201

Long Beach, California 90802877.984.7969

THANK YOU!! FOR JOINING US!!

Navigate “On the Magic Carpet Ride” The Interactive Process Under A.D.A. and F.E.H.A. Timothy L....

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