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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

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


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    1. 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 Mountain View, California 94040 650.327.2672 monjaraswismeyergroup

    2. BEFORE

    3. What We Will Cover: 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

    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. FEHA Legislative Intent • FEHA provides protections in the area of disabilities independent from those in the federal ADA • CA law contains broad definitionsof 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. “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.”

    8. FEHA Legislative Intent • Employers have an affirmative duty to reasonably accommodate a disabled employee or applicant in order to: • Ensure equal opportunity in the application process • Perform the position’s essential functions • 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.

    9. FEDERAL (ADA) A person is disabled if he/she: CALIFORNIA (FEHA) A person is disabled if he/she: Navigating the Disability Skyway - Who is Disabled? • 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. • 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.

    10. 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.

    11. 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).

    12. 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

    13. 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

    14. 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) • Humphrey v. Memorial Hospital Assn.

    15. 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.

    16. 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

    17. 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.)

    18. Navigating the Disability Skyway - Regarded As Disabled? 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.

    19. 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.

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

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

    22. Triggers monjaraswismeyergroup Before any negative employment action is taken by the employeragainst a disabled / perceived disabled candidate or employee: • Engage and Provide accommodations, if reasonable: • Modified Work • Alternate work • Extended Leave of Absence (Unpaid)

    23. Triggers monjaraswismeyergroup 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”

    24. Does a Temp. have FEHA RIGHTS? monjaraswismeyergroup 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)

    25. 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 What constitutes the “Good Faith Interactive Process”

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

    27. IP 5 Step Process monjaraswismeyergroup 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

    28. 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

    29. 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”

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

    31. 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 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”

    32. Work Restrictions Vs. a Request for 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”

    33. IP 5 Step Process monjaraswismeyergroup 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

    34. IP 5 Step Process monjaraswismeyergroup 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

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

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

    37. IP 5 Step Process monjaraswismeyergroup 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

    38. What constitutesReasonable Accommodation • Modifying examinations • Changing policies • Paid / Unpaid Leave monjaraswismeyergroup 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)

    39. Potential Reasonable Accommodations: monjaraswismeyergroup • 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

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

    41. Unreasonable Accommodations: • 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

    42. Reasonable Accommodation monjaraswismeyergroup 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

    43. 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

    44. 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

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

    46. 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