BUILDING YOUR TOOLBOX ACCOMMODATIONS INTERACTIVE PROCESS FOR DISABILITY AND THE

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1 BUILDING YOUR TOOLBOX FOR DISABILITY ACCOMMODATIONS AND THE INTERACTIVE PROCESS P R E S E N T E D B Y : J E R R Y J. D E S C H L E R J R. A T T O R N E Y A T L A W J A C K S O N L E W I S P. C. 801 K STREET, SUITE 2300 SACRAMENTO, CALIFORNIA (916) deschlej@jacksonlewis.com

2 ABOUT THE FIRM Represents management exclusively in every aspect of employment law 55 locations nationwide and over 770 attorneys, including San Francisco, Napa, Sacramento, Los Angeles, Orange County, and San Diego Current caseload of over 6,500 litigations and 550 class actions U.S. News Best Law Firms, 2012 AM Law100, 2012 Top Ranked Chambers USA, and Founding member of L&E Global 1 ABOUT THE FIRM U.S. News - Best Lawyers "Best Law Firms" named Jackson Lewis the 2014 "Law Firm of the Year" in the Litigation-Labor and Employment category Ranked in the First Tier nationally in the category of Labor and Employment Litigation, as well as in both Employment Law and Labor Law on behalf of Management, in the U.S. News - Best Lawyers Best Law Firms Recommended in U.S. Legal 500 for Labor and Employment Litigation, Labor-Management Relations and Workplace and Employment Counseling Recognized as a firm that corporate counsel would most like to have by their side in head-to-head competition in the BTI Litigation Outlook Report Jackson Lewis attorneys were named Leaders in Their Field by Chambers USA for 2013; 105 Jackson Lewis attorneys were named Best Lawyers in America in the 2014 edition 2 3 1

3 LAWS IMPACTING LEAVE DECISIONS IN CALIFORNIA Workers Compensation Pregnancy Disability Leave (PDL) Family and Medical Leave Act (FMLA) California Family Rights Act (CFRA) Americans with Disabilities Act (ADA) Fair Employment and Housing Act (FEHA) 4 The Big Picture Is Workers Compensation Law Triggered? Is PDL (Pregnancy Disability Leave) Law Triggered? Is the Leave Medically-Related (FMLA/CFRA)? Is there a Duty to Offer Reasonable Accommodation (ADA/FEHA)? 5 EMPLOYERS COVERED BY LEAVE LAWS FMLA and CFRA 50 employees within 75 mile radius PDL 5 employees EMPLOYEE ELIGIBILITY FOR LEAVE FMLA and CFRA 12 months of employment and 1,250 hours of service within last 12 months PDL Immediate 6 2

4 Reasons For Leave FMLA Employee s own serious health condition ; care of a parent, spouse or child with a serious health condition; birth or placement for adoption or foster care of a child Military family leave provisions CFRA PDL FMLA reasons plus registered domestic partners or children thereof with serious health conditions (but not pregnancy and related medical conditions) Disability related to pregnancy or pregnancy-related condition 7 Reasons For Leave Interplay Between FMLA/CFRA/PDL CFRA leave never runs concurrently with pregnancy disability leave CFRA leaves will run concurrently with FMLA leaves except: If medical leave is due to employee s pregnancy, childbirth or related medical condition (CFRA only) If family care or child bonding leave pertains to domestic partner (CFRA only) If leave is for next of kin to care for an injured service member and the next of kin is not a family member covered under CFRA (FMLA only) If leave is for a qualifying exigency for a covered military member (FMLA only) 8 Reasons For Leave Simplifying the Picture: FMLA PDL CFRA 9 3

5 Duration of Leave: Workers Compensation Potentially unlimited duration PDL Up to 4 months total (for periods of actual disability) FMLA & CFRA 12 weeks in a 12-month period Military family leave provisions are different! May be taken by reducing employee s schedule or providing leave intermittently if the medical condition so requires 10 BUILDING THE REASONABLE ACCOMMODATION TOOLBOX IS THE APPLICANT/EMPLOYEE DISABLED AS DEFINED BY ADA/FEHA? How can you tell? Does the employee have a physical or mental impairment that limits at least one major life activity*? Does the employee have a record of such a limitation in the past? Has the employee been regarded as disabled (i.e., treated as having an actual or perceived limitation in a major life activity that is more than transitory or minor)? 12 4

6 1. IS THE APPLICANT/EMPLOYEE DISABLED AS DEFINED BY ADA/FEHA? What about job applicants? Has an applicant informed you of a disability or is there an obvious disability? (e.g., service dog, wheelchair, or other assistive devices) When can you inquire or require a medical exam? When can you rescind a conditional job offer based on medical information received? IS THE PERSON A QUALIFIED INDIVIDUAL WITH A DISABILITY? Does the individual have the training, experience, and skill required for the job the employee holds or desires? Can the employee perform the essential functions of the job with or without accommodation that the person holds or desires? IS A REASONABLE ACCOMMODATION AVAILABLE? Step 1: Analyze the job to determine its purpose and essential functions; then meet with the employee to communicate the essential functions, find out what they can and cannot do and what accommodation(s) they suggest and prefer; finally seek clarification from the employee s doctor if necessary. Step 2: Once this information is gathered and documented, the employer should then evaluate the restrictions against the essential functions to determine if the employee can perform the essential job functions with accommodation. Step 3: In a subsequent meeting, the employer should discuss its analysis with the employee and see if together they can agree on the accommodation(s) to put in place. 15 5

7 3. IS A REASONABLE ACCOMMODATION AVAILABLE? Examples of reasonable accommodations? Making existing facilities accessible and usable by the disabled. Job restructuring: re-assign non-essential or marginal job functions to others. Altering when/how job functions are performed. Providing part-time or modified work schedules. Adjust start times, break times, number of breaks etc. Reassignment: if a vacant position exists for which the employee is qualified and can perform the essential job functions, the employee must be placed there as long as he or she has the training, experience, and skills to do the job. Acquiring or modifying equipment. Adjusting or modifying training materials. Providing qualified readers or interpreters. Providing a leave of absence (and holding job open for employee). Providing intermittent time off for doctor s appointments, treatment, etc. Modifying application of workplace policies or rules (including absence policies) IS A REASONABLE ACCOMMODATION AVAILABLE? What is generally not a reasonable accommodation? Eliminating an essential function of the job. Violating seniority provisions of collective bargaining agreement provisions regarding bidding for vacant jobs, unless special circumstances make an exception reasonable in the particular situation. Providing personal use items such as eyeglasses or wheelchairs that are used off the job as well. Lowering production or performance standards. Withholding discipline of employee who engages in misconduct (in cases where the employee s misconduct is not caused by or a consequence of the employee s disability) Creating a new position. Providing an indefinite leave of absence. Firing the employee s supervisor IS THERE A LAWFUL REASON TO DENY ACCOMMODATION? 4a. Would providing the accommodation pose an undue hardship? Factors: the nature and cost of the accommodation needed; the overall financial resources of the facility; the overall financial resources, size, number of employees, and type and location of facilities of the employer; the type of operation of the employer; the impact of the accommodation on the operation of the facility. 18 6

8 4. IS THERE A LAWFUL REASON TO DENY ACCOMMODATION? By the way Does the employer have to hold open an employee s job as a reasonable accommodation while granting leave? A: Generally, yes IS THERE A LAWFUL REASON TO DENY ACCOMMODATION? 4b. Does the employee pose a direct threat to the health or safety of the disabled individual or others in the workplace? Direct threat means: a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation Requirements: Individualized assessment of individual s present ability to safely perform the essential functions of the job Based on a reasonable medical judgment that relies on most current medical knowledge and/or best available objective evidence 20 SUMMARY Satisfying Interactive Process Obligations Once a reasonable accommodation is requested, or the employer is aware of its necessity, the employer must initiate a process with the employee to determine the accommodation necessary to enable the employee to perform the essential functions of his or her job Good faith is required May require follow-up with the employee s treating physician(s) 21 7

9 TEST YOUR KNOWLEDGE 22 THE CHICAGO NO SHOW Following the loss of her life savings in the stock market, Lisa mentions that she is on Prozac and feels a marked decrease in her motivation. Later that month, Lisa misses several critical deadlines and ultimately misses an important client meeting in Chicago. Lisa claims she was too depressed to leave her hotel room and tried repeatedly to reach her psychiatrist. The client has switched her business to your competitor. Although you sympathize with Lisa s situation, the consequences of Lisa s recent conduct have terribly affected your business and you feel that you must take action. 23 THE CHICAGO NO SHOW QUESTION #1 Is the obligation to engage in the interactive process triggered under the ADA and/or FEHA? ANSWER #1 Yes likely both. Your employee made her mental disability known to you when she mentioned that she was treating with anti-depressants and felt a marked decrease in her motivation. 24 8

10 THE CHICAGO NO SHOW QUESTION #2 Can the employee be terminated based upon the fact that she failed to show up to the client meeting in Chicago? Let s face it her conduct cost the employer a major client. ANSWER #2 An employer generally cannot fire an employee for conduct if the conduct was due to their disability and reasonable accommodation plausibly would have rectified the performance problem. (Gambini v. Total Renal Care, Inc., 486 F. 3d 1087 (9th Cir. 2007).) But is she truly able to perform the essential functions of her job? 25 THE CHICAGO NO SHOW QUESTION #3 Can the employee be transferred to a position with less demanding deadlines and client contact? ANSWER #3 It depends. If decided unilaterally, this could be considered an adverse employment action. But a transfer position with less demanding deadlines and client contact could be a reasonable accommodation for your employee s depression. Before making a decision, you must engage the employee in a dialogue to determine the appropriate accommodation(s), if any, that will enable her to conform her conduct to acceptable standards. 26 THE SUPERVISOR WITH SOCIOPATHIC TENDENCIES A supervisor in your department is ready to return to work after a lengthy physical disability leave stemming from a freak workplace accident. Upon review of this employee s workers compensation file, you notice a psychiatric report filed in 2006 in support of a claim for psychiatric disability. This report diagnoses the supervisor with extreme sociopathic tendencies. An essential function of her position is to empathize with other employees in order to best deal with their interpersonal conflicts. Based upon this report, you conclude that she should not resume her former position. 27 9

11 THE SUPERVISOR WITH SOCIOPATHIC TENDENCIES QUESTION #1 If the supervisor is unable to show any improvement in her psychiatric condition so that she can perform the essential functions of her job, even with a reasonable accommodation, what obligations does the employer have under California law? ANSWER #1 It depends. An adverse employment action on the basis of disability is not prohibited if the disability renders the employee unable to perform his or her essential duties, even with reasonable accommodation. To establish that an employer has violated the FEHA, an employee must prove he or she is able to do the job held or desired. (Green v. State of California, 42 Cal. 4th 254 (2007).) Thus, the employer may not have an obligation to return her to her former position if she cannot perform the essential functions of her job with or without a reasonable accommodation. 28 THE SUPERVISOR WITH SOCIOPATHIC TENDENCIES QUESTION #2 The supervisor has requested additional leave time after her FMLA/CFRA leave expired. Currently, the supervisor has been on leave for 13 weeks. The employer would prefer to fire her since her temporary replacement is outstanding and doesn t exhibit any sociopathic tendencies which the employees seem to prefer. In fact, several employees noted to the employer how things seem to be running better without the outbursts of those sociopathic tendencies. Can the supervisor be fired since she no longer has any FMLA/CFRA leave left? ANSWER #2 No. Mere expiration of FMLA/CFRA leave does not permit an employer to terminate an employee with a disability. Leave may be a reasonable accommodation, especially if it is for a defined period of time and duration. 29 THE SUPERVISOR WITH SOCIOPATHIC TENDENCIES QUESTION #3 After several meetings with legal counsel and the drafting of a decision tree to plot out potential liabilities, the employer finally understands that firing the supervisor now may not be a good option. Yet, the employer asks how much leave time must be given to an employee with a disability? Which of the following is not the correct answer? (a) 1 month? (b) 3 months? (c) up to a year of unpaid leave? (d) indefinite leave? ANSWER #3 (d) is incorrect. An employer does not have to accommodate an indefinite leave of absence since such leave is likely not a reasonable accommodation. However, an unpaid leave of absence over a year could be a reasonable accommodation

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