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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. 1. PURPOSE.

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legal exposure reduction county supervisors role and responsibilities under

LEGAL EXPOSURE REDUCTIONCounty 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

1

purpose
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).

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legal exposure reduction and reasonable accommodation under ada feha
Legal Exposure Reduction and Reasonable Accommodation under ADA/FEHA

Define supervisors’ role in reducing legal exposure in ADA/FEHA employment cases

Distinguish differences between the ADA and FEHA

Explain why ADA/FEHA litigation is on the rise

Discuss the factors driving costs of employment litigation

Explain the strategy to manage risk through proper documentation

Apply County policies and guidelines relating to disability management

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Describe and define appropriate terms and acronyms relating to ADA/FEHA and disability management

Recognize the triggers for engaging in the interactive process

Define reasonable accommodation

Describe the important steps to the Interactive process meeting

Learn how to effectively document the interactive process

Utilize the resources available to assist supervisors in managing employees with disabilities

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employment litigation is big business
EMPLOYMENT LITIGATION IS BIG BUSINESS

Documentation is crucial to management of County workplace.

We call it “evidence” in court!

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documentation is essential in both
DOCUMENTATION IS ESSENTIAL IN BOTH:

Complying with accommodation requirements in disabilities law (ADA/FEHA).

Performance management, including progressive discipline, when necessary.

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part i the legal landscape
Part ITHE LEGAL LANDSCAPE

Everything You Always Wanted to Know About ADA/FEHA Litigation*

*…..but were afraid to ask…..

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

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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

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how supervisors can help or hurt
How Supervisors Can Help Or Hurt
  • Missing signals for interactive process
  • Mixing ADA and performance issues
  • Not being reasonable in accommodation
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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.

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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.
slide18
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.

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

Why are there so many ADA/FEHA lawsuits?

Why is ADA/FEHA litigation so expensive?

How Can the County win a jury trial?

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County is a BIG employer, therefore a big target

Huge growth in ADA/FEHA cases: The Word is Out!

Fact intensive cases go to jury

Successful plaintiffs get attorney’s fees

Why Are There So Many Lawsuits?

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Successful plaintiffs get attorney’s fees

ADA/FEHA cases are fact intensive

Long employment history may be involved

Cases are document driven: personnel files may be extensive

Complex Interaction with other Laws (FMLA, Workers’ Compensation)

E – Discovery

Personal liability of supervisors

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the challenges
The Challenges

Jurors tend to be employees, not employers

Popular culture

Negative images

Employment law is complex

Things juries hate

Medical confidentiality

The perils of E-mail

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the perils of e mail
The Perils of E-Mail

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”

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important tips
Important Tips

Document the Interactive Process

All documents should tell a story

Be prompt – timeliness is critical

Be nice – “How can I help?”

Be Consistent

Keep them on the job

Look for early resolution – Be proactive

How County Can Win a Jury Trial

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legal documentation
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.

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exercise i

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?

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