navigate “ on the magic carpet ride ” the interactive process under a.d.a. and f.e.h.a
DESCRIPTION
Navigate “ On the Magic Carpet Ride ” The Interactive Process Under A.D.A. and F.E.H.A. Steve Monjaras Monjaras & Wismeyer Group 130 Pine Avenue, Suite 201 Long Beach, California 90802 877.984.7969. Timothy L. Davis, Esq. Burke, Williams & Sorensen, LLP 2440 W. El Camino Real, Suite 620 - PowerPoint PPT PresentationTRANSCRIPT
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
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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:
AFTER
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 isweaker than the ADA and to retain California lawwhen it provides more protection for individualswith 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.
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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.
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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).
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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
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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.
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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
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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.
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Regarded As Disabled?
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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
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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
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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
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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?
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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
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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
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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
Vs.
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
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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
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Step 3: Continued
Short – term / temporary restrictions Temporary Light Duty/Transitional Duty Program
Long – term / permanent restrictions Reasonable Accommodation Program
IP 5 Step Process
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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 facemonjaraswismeyergroup
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
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• 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:
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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 jobConverting a full-time position to
part-timeCreating a light duty positionRemoving the essential functionsPromotionAssigning a helperHolding a position open indefinitely
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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
Reasonable Accommodation
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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
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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
Reasonable Accommodation
Source: Fair Employment and Housing Act-FEHA (Government Code § 12940), Greene v. Countrywide Home Loans, 10/2007
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Reasonable Accommodation
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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
Reasonable Accommodation
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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.
Reasonable AccommodationWhen 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
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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
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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
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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 accommodation3. Offer of an Extended Leave of Absence
• When temporarily disabled• Potentially in excess of company policy
Reasonable Accommodation
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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
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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…?
NEVER
Humphrey v. Memorial Hospital Assn., 239 F.3d 1128(9th Cur. 2001)
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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 AccommodationExhaust all paid leavesExhaust all available state and federal leaves (FMLA/CFRA) and unpaid leaves
Follow CBA / Personnel Rules Other: Handbook monjaraswismeyergroup
• 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
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• 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
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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
monjaraswismeyergroup
THANK YOU!! FOR JOINING US!!