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REASONABLE ACCOMMODATION. Return-To-Work 101 County of Los Angeles MAY 2, 2013 PRESENTED BY: STEVE MONJARAS MONJARAS & WISMEYER GROUP, INC. What We’ll Cover:. Basic overview of FEHA/ADA 5 Steps of the Interactive Process Addressing Complicated Work Restrictions Dueling Doctors Notes
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REASONABLE ACCOMMODATION Return-To-Work 101 County of Los Angeles MAY 2, 2013 PRESENTED BY: STEVE MONJARAS MONJARAS & WISMEYER GROUP, INC.
What We’ll Cover: • Basic overview of FEHA/ADA • 5 Steps of the Interactive Process • Addressing Complicated Work Restrictions Dueling Doctors Notes When Hygiene and Disabilities Overlap Mental Health Serial Leaves • Q&A
How It Must Be Done 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. Source: Fair Employment and Housing Act-FEHA (Government Code § 12940(n)
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)
Reasonable Accommodation What constitutesReasonable Accommodation 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 • - Modifying examinations • - Changing policies
Reasonable Accommodation 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 *Source: Raine v. City of Burbank 1/2006
Reasonable Accommodation 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
An EMPLOYER does not have to do any of the following: Lower production or performance standards. • Example: A hotel that requires its housekeepers to clean 16 rooms per day does not have to lower this standard for an employee with a disability. Excuse violations of conduct rules necessary for the operation of the business. • Example: ER does not have to tolerate violence, threats of violence, theft, or destruction of property, even if the EE claims that a mental or physical disability caused the misconduct.
Reasonable Accommodation 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 Note: Refer to Occupational Health Programs in CEO/Risk Management Branch for Policies and Procedures related to Violence in the Workplace Source: Fair Employment and Housing Act-FEHA (Government Code § 12940), Greene v. Countrywide Home Loans, 10/2007
Reasonable Accommodation Direct Threat as Defined by EEOC: “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”
Reasonable Accommodation When considering Direct Threat, LOOK FOR: • A reasonable medical judgment that relies on the most current medical knowledge. • Objective Evidence • Duration of risk • Nature and severity of the potential harm • The likelihood that the potential harm will occur • The imminence of the potential harm.
Reasonable Accommodation When considering Direct Threat, LOOK FOR: • A reasonable medical judgment that relies on the most current medical knowledge. • Objective Evidence, Factual evidence • Duration of risk • Nature and severity of the potential harm • The likelihood that the potential harm will occur • The imminence of the potential harm.
Reasonable Accommodation Undue Hardship Defined: Undue hardship is a significant difficulty or expense caused by an accommodation, such as the: • Nature and cost of the accommodation needed • Overall financial resources of the facility making the reasonable accommodation • Effect on expenses and resources of the facility • Impact of the accommodation on the operation of the facility Note: Be very careful of using this as a defense.
Reasonable Accommodation When 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
Reasonable Accommodation • Offer of Modified Work • Current classification, performing all essential functions • WC considers 85% wages (LC 4658.1(b)) • 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 accommodation • Offer of an Extended Leave of Absence • When temporarily disabled • Consider even it in excess of current policy
Providing Accommodation • 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
No Accommodation Made If no accommodation is possible, employer must be able to PROVE and DOCUMENTone 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 at a later time; • No appropriate vacant positions available
AT MEETING REMEMBER W.E.C.A.N.
W – Work Restrictions E – Essential Functions Affected C – Conflicts / Challenges of WR A – Accommodations / Actions Taken N – Notes / Documentation
Multiple Doctors And Work Restrictions
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”
FEHA Definition of a Disability “NO PUBLIC CONTACT” “REDUCED CASE LOAD” “REDUCE COMMUTE”
SORT IT OUT!!!! WORK RESTRICTIONS Vs. REQUEST FOR REASONABLE ACCOMMODATION(S)
Work Restrictions Vs. a Request for Reasonable Accommodations • “no lifting and or carrying over 10 lbs.” • “no public contact, unknown to employee” • “No work with Jenny Doe, must be transferred” • “must be transferred to DPSS 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/computer work over 20 minutes per hour”
…She may continue her usual and customary occupation. However, it is recommended that her work activities be modified to only one evaluation and testing per day with alternating periods of sitting, standing, moving about, and writing reports… • …Must travel within comfort zone… • …Please allow Mary to spread / divide work hours over 5 days instead of 4 days. Maximum 6 – 7 work hours / day with 1 hour break every 3 – 4 hours… • “…must have a 20% reduction in work for one year starting 09/12/12 to end of academic year 2013…”
“needs to be assigned to a private office with an air humidifier” “no exposure with perfumes, fabric softeners, deodorants” • “…I recommend that Mr. Doe return to work January 8, with the accommodation that he be changed to a different department where he does not have to work for Carol King…” • “…I recommend that Mr. Doe return to work and that he be reassigned to a different position under a different supervisor…” • “…Pt. must be transferred to work without Mgr. Carol King interference at all…
DUELING DOCTORS NOTES • ● Class: Sr. Animal Control Officer • ● Disability/Medical Condition: On the job injury to back; hypertension • ● March of 2007 Strained back while trying to pull a dead deer off road. • ○ Off work for a couple of months • ○ DR. GARCIA PRIMARY TREATING PHYSICIAN Work Comp, PWR: 10/15/2008 • “…NO HEAVY PUSHING AND PULLING; NO LIFTING OR CARRYING OVER 50 LBS; NO PROLONGED SITTING, EVERY TWO HOURS WILL NEEDS A FIVE MINUTE STRETCH BREAK FROM SITTING…”
March 16, 2009 - Altercation with supervisor refused instruction, yelling, went home before end of shift. (Two years ago, had written notice for insubordination.) • ○ Returned to work two days later per DR. Smith, Personal Doctor. PWR: dated September 20, 2011 • “…NO UNDUE STRESS. WOULD BE BEST FOR PATIENT’S HYPERTENSION TO REPORT TO A DIFFERENT SUPERVISOR…” • OPEN UP FOR DISCUSSION? • ○ Employee receives a small suspension. • ○ Dr. clarifies that employee can perform all the duties of a Sr. Animal Control Officer, with the following work restrictions:
Mr. Doe should not work more than 20 hours per week for the first two weeks of his return to work. Can resume his regular 40 hour work schedule pending stabilization of his condition. • Upon return to his 40 hour work week, Mr. Doe can resume his regular work schedule. • Mr. Doe should not be under the direct supervision of or have contact with Vincent Smith (Director of Operations). May not be in the same room, even if others are present. May not be in the same building; May not talk on the phone.; May not receive emails from Mr. Smith; Employer must ensure Mr. Doe does not have any casual contact with Mr. Smith this includes walking in hall, common areas, break room, restrooms.
Mr. Doe can have limited contact with Julie Garcia (Animal Control Officer) as related to his work duties. This contact include all phone and email communication and personal contact in the presence of at least one other party pending stabilization of his condition. • Mr. Doe should not perform his work duties at the South Plaza location and he should not work at a plant more than a 25 mile radius of his home. He can travel locally for work purposes; however, his work base and regular work location is limited to a 25 mile radius of his home pending stabilization of his condition. • Mr. Doe should be allotted time off as needed for follow up appointments to treat his condition of work related stress.
September 30 12, 2012 - Fell while trying to restrain an animal in the evening. • October 15, 2012 Dr. Washington, Personal Physician. TWR: • “…DURING DAYLIGHT SAVINGS (OCTOBER TO MARCH) MUST HAVE EARLIER WORK SCHEDULE…” • Dr. clarifies that employee can perform all the duties of a Sr. Animal Control Officer, but • Mr. Doe cannot work early morning or at night time. Cannot drive until 15 minutes after sunrise and no driving after sunset/nightime. Prohibited from working in poorly light areas. • OPEN UP FOR DISCUSSION?
November 19, 2012 - Department Reorganization; employee assigned from North East to Valley due to need for supervisory coverage (employee worked East Valley for several years as an Animal • Control Officer) • ○ November 20, 2012 – DR. AVERY - Chiropractor TWR: • Patient recently aggravated prior back injury. Cannot sit longer than one hour without back pain. So as not to reinjure back, employee should be assigned to a location where the commute is less than one hour, preferably North East Shelter. • OPEN UP FOR DISCUSSION?
■ Expected duration 3 months OPEN UP FOR DISCUSSION? ■ Expected duration 9 months OPEN UP FOR DISCUSSION?
● December 5, 2012 - Proposed accommodation: assignment conducting hearings in downtown office • ● December 8, 2012 – Dr. Mitchell, Psychologist • PWR: Cannot work in high rises (fear of heights) • 5 DOCTORS NOTES: Dr. Garcia, PTP • Dr. Smith , Personal Physician • Dr. Washington, Personal • Dr. Avery, Chiropractor • Dr. Mitchell Psychologist • OPEN UP FOR DISCUSSION?
MENTAL HEALTH SCENARIO
MENTAL HEALTH • Job Title: Electrician • Disability: not disclosed • No Permanent Work Restrictions • Performing all essential functions of job • Employee believes co-workers are tampering with his lunch and trying to poison his lunch.
Continually complaining to supervisor and aggressively confronting co-workers even when lunch is locked in toolbox, he suspects tampering OPEN UP FOR DISCUSSION? Supervisor reassures him each time that no one is poisoning his lunch. Steps are taken to lock up lunch in secure area.
Employee has altercation with co-worker and threatens co-worker with a sharp work tool. Both employee are sent home. • OPEN UP FOR DISCUSSION? • Upon return employee discloses mental illness. • Dr. Avery - Psychologist PWR: • “employee should not be alone with Vincent Fernandez”. Should be transferred to Parks & Recreation”
SERIAL LEAVES • Job Title: Auditor • Disability: not disclosed; but non-industrial • Took Family Medical Leave for own serious health condition from July 2012 to September 2012. (12 weeks) • Day before expected return requested medical leave • Doctor’s note says unable to return to work for 30 days • Additional leave is granted
Day before expected return, requested extension. Doctor’s note says unable to return to work for 30 days OPEN UP FOR DISCUSSION? Doctor clarifies. Employee unable to work, needs 3 months for recovery before returning to full duty. OPEN UP FOR DISCUSSION? Doctor clarifies. Employee unable to work, needs 6 months for recovery before returning to full duty. OPEN UP FOR DISCUSSION?
CHANGING THE SCENARIO A BIT. • The employee has been off for eighteen months. • Employee exhausted FMLA at the beginning of the leave, used all accrued time, and asked for a one year medical leave that was granted. • Leave expired five months ago, and we have not heard from the employee • Due to recent attrition (retirement, layoffs, etc.) and the inability to backfill, the Division is severely short-staffed. • OPEN UP FOR DISCUSSION?
HYGIENE • Class: Management Analyst (with Couinty of 31 years) • Disability: Partial paralysis as a result of off work injury many years ago • Age: 60 • Employee was confined to wheelchair; permanent limited use of right arm due to shoulder injury; not always in control of urine and stool; current medication causes dry mouth so employee drinks lots of water and requires frequent bathroom breaks.