MANAGING ILL, INJURED, AND DISABLED WORKERS IN CALIFORNIA

Transcription

1 MANAGING ILL, INJURED, AND DISABLED WORKERS IN CALIFORNIA PRESENTED BY: ANDREWS LAGASSE BRANCH & BELL Jonathan Andrews, Jennifer Branch, & Margaret (Margi) Bell

2 PRESENTED BY: JONATHAN ANDREWS JENNIFER S. BRANCH MARGARET (MARGI) BELL

3 APPLICABLE LAWS Family and Medical Leave Act California Family Rights Act Eligible employer/employee Up to 12 weeks of unpaid leave For serious health condition/care for child Employee or family member Continuous or intermittent Leave for member of Armed Forces 26 weeks Differences domestic partnership/pregnancy/military

4 APPLICABLE LAWS Pregnancy Disability Leave Female employees disabled due to pregnancy, childbirth, or related conditions Up to 4 months Job-protected Unpaid Transfer to less strenuous position Not simultaneous with CFRA

5 APPLICABLE LAWS Americans with Disabilities Fair Employment and Housing Act Disability broad definition Prohibits disability discrimination Requires an interactive process Requires a reasonable accommodation No undue hardship Threat to self/others

6 APPLICABLE LAWS Workers Compensation - Provides leave and benefits for work-related injuries Sick Leave/Company Policy - Additional guidelines Wage and Hour Laws - Sick leave and pay requirements

7 STATISTICS Per Dept. of Labor, almost 50 million Americans have a disability 20 percent of the U.S. workforce In 2012, there were 26,379 disability discrimination claims filed with the EEOC More than one quarter of all EEOC charges EEOC recovery nearly doubled from 2008 to 2012 ($103.4 million)

8 EEOC/DFEH INTEREST Employer inflexible with leave policies Employer practice of terminating employee after 12 weeks of FMLA leave Employer policy not to rehire employees Discriminatory application of light-duty policy Applying policies without engaging in interactive process Inflexible with intermittent leave due to disability

9 SCENARIO 1 As the receptionist, it s Angie s responsibility to open the front doors to the business in the morning and answer phones. Angie is pregnant and has severe morning sickness. She s often minutes late, and she never calls her supervisor to advise of her anticipated late arrival. The supervisor is angry because customers are left standing outside until Angie arrives. Can Angie be disciplined? Angie asks to move to a different position during the remainder of her pregnancy Angie asks to go out on medical leave two months before her due date

10 SCENARIO 1 Angie is disabled for three more months after the baby is born She requests four more months off to bond with her baby Angie s husband also works for company and he asks to take time off to care for wife an baby Angie asks if she ll be paid while on leave Angie asks about maintenance of benefits while she s on leave At the conclusion of her leave, Angie announces that she won t return to work

11 SCENARIO 2 Johnny seeks to take leave for a disabling, stress-related condition Under the employer s short-term disability leave policy, he is required to submit to an examination by an employerselected doctor for verification of his need for disability leave Jonny is evaluated by the employerselected psychiatrist

12 SCENARIO 2 The doctor s report includes detailed medical, family, and social histories and statements that Jonny s condition might be linked to an alcohol abuse problem Can the employer require Jonny to enter an alcohol treatment program as a condition of continued employment? Can Jonny voluntarily enter rehab? If Jonny is caught drinking on the job, can he be disciplined?

13 SCENARIO 3 3 Linda takes several leaves for bipolar disorder She does not provide specific notice to the employer of actual condition After her return, Linda becomes angry when locked out and has to wait for co-workers to let her into work one day Linda swears at and threatens to add coworker to her Kill Bill list

14 SCENARIO 3 3 cont. Linda s doctor puts her on medical leave During leave, Linda makes threats to coworkers

15 SCENARIO 3 3 cont. Insert

16 SCENARIO 3 3 cont. Linda s doctor returns her to work The employer places her on an administrative leave pending investigation into threats Linda presents a doctor s note that she has bipolar disorder and is not a danger Can the employer terminate Linda due to threats, misuse of employer resources, and poor judgment? Linda argues threats were caused by mental disability

17 SCENARIO 4 Bob went on FMLA leave for 4 weeks to care for his ill mother Two months later he comes down with the flu and takes a sick day He goes to a doctor who prescribes medication and he takes a few more days off He then returns to the doctor and is diagnosed with H1N1 and is taken off work for 2 weeks

18 SCENARIO 4 As a result of the flu, he has slight vision loss His vision loss improves with the use of medical marijuana He still has a hard time viewing his computer screen His performance deteriorates Can Bob be disciplined for performance? Can Bob be disciplined for using marijuana? Can Bob be disciplined for excessive unscheduled absences?

19 SCENARIO 5 Megan is verbally counseled about her poor performance She does not make any effort to improve The employer decides to terminate Before she is told about her termination, Megan hits her head on a filing cabinet Megan s doctor takes her off work for two weeks Her doctor returns her to full duty with no restrictions

20 SCENARIO 5 Should the employer discipline or terminate Megan now? After one week, when discussing a mistake she made at work, Megan mentions that her supervisor stresses her out and she is depressed. She asks to be transferred to a different supervisor.

21 SCENARIO 6 And Harder Monika works part-time Employer s attendance policy provides for termination after 5 unscheduled occurrences in 12 months Protected leaves are not counted Monika has fibromyalgia She is given a performance evaluation criticizing attendance 7 occurrences. No improvement Monika meets with LOA specialist Company agrees Monika could call in if having a bad day and move her shift

22 SCENARIO 6 And Harder Monika s unplanned absences still exceed policy The employer agrees not to set shifts on consecutive days She still exceeds policy and is given warning Monika asks for exemption from the policy with unspecified number of unplanned absences The employer decides to cut part-time position and advises Monika she could transfer or be terminated Monika fails to show up at meeting to discuss issues

23 SCENARIO 6 cont. Can the employer terminate Monika for attendance problems? Sampler v. Providence St. Vincent Medical Center The employer wins on summary judgment! In those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions. An employer need not provide accommodations that compromise performance quality. An accommodation that would allow Monika to miss work whenever she felt she needed to and for so long as she felt she needed to is not reasonable.

24 QUESTIONS?