WORK RESTRICTIONS & REASONABLE ACCOMODATIONS

1. WORK RESTRICTIONS & REASONABLE ACCOMODATIONS County of Los Angeles RETURN-TO-WORK SEMINAR July 19, 2012

2. F.E.H.A. BASICS

3. FEHA Mandates • Employers must engage in a good faith interactive process with employees who have disabilities to determine the appropriate reasonable accommodationsthat might overcome the employee’s/applicant’s job limitations (Government Code Section 12940(n).) • The duty to engage in this process is a stand-alone statutory requirement • An employer will violate the statute by failing to proceed with the process, even if accommodation is not possible

4. What FEHA Requires FEHA Mandates Reasonable Accommodation “Once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation would represent an undue hardship to the business operation.” • For candidates and employees Source: Fair Employment and Housing Act-FEHA (Government Code § 12940(n)

5. 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)

6. FEHA Legislative Intent “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.” • 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.

7. FEHA Definition of a Disability • Physical or mental medical condition that “limits… a major life activity.” • “Limits” = “makes the achievement of a major life activity difficult” • Government Code Sections 12962(i),(k)

8. FEHA Definition of a Disability What is not a disability: • Sexual behavior disorders • Kleptomania • Pyromania • Illegal use of controlled substancesor drugs • Compulsive gambling

9. What Triggers FEHA • Temporarily Disabled (Short Term) • Permanently Disabled (Long Term) • Perception of EE/Applicant as Disabled

10. Triggers • 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”

11. Triggers 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)

12. 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)

13. 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)

14. 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

15. 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

16. 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

17. 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 • Performing work would re-injure/ put at risk • Condition that results in threats or violence Source: Fair Employment and Housing Act-FEHA (Government Code § 12940), Greene v. Countrywide Home Loans, 10/2007

18. 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.

19. 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

20. 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

21. 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

22. 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

23. 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. What constitutes the “Good Faith Interactive Process”

24. Documentation Note Written meeting notes should include: • Purpose of meeting / Reason for IP • Documents relied on • Summaries of discussions betweenall parties relating to: • Modified work • Alternate work • Extended leave of absence (unpaid) • Summarize outcomes or next steps • Signatures of all attending parties

25. AT MEETING REMEMBER W.E.C.A.N.

26. W – Work Restrictions E – Effected Essential Functions C – Causes and Discussion A – Accommodations / Actions Taken N – Notes / Documentation

27. W – Work Restrictions E – Effected Essential Functions C – Causes and Discussion A – Accommodations / Actions Taken N – Notes / Documentation

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

29. Work Restrictions Vs. a Request for Reasonable Accommodations • “no lifting and or carrying over 10 lbs.” • “no public contact” • “cannot 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” • “Unable to handle full case load” • “unable to drive over 5 miles per day” • “no typing over 20 minutes per hour”

30. Understand Work Restriction, Get Clear Picture

31. W – Work Restrictions E – Effected Essential Functions/Job Duties C – Causes and Discussion A – Accommodations / Actions Taken N – Notes / Documentation

32. IDENTIFY ESSENTIAL FUNCTIONS • Ask employee to address which Essential Functions are exceeding employee’s current tolerance for “emotional / stress related work restrictions” • Write down the identified essential functions in conflict with work restrictions and need for reasonable accommodation. • Examples: • Case Management, number of cases • Phone Work • Field work; commute, traffic, drive • Meeting and Training

33. W – Work Restrictions E – Effected Essential Functions C – Causes and Discussion A – Accommodations / Actions Taken N – Notes / Documentation

34. Reasonable Accommodation • Identify the conflict(s)/triggers • Ask employee what are areas of concern • Identify causes • Design and Implement Reasonable Accommodations • Brainstorm for solutions • Listen to employee’s preference • Select best intervention to curtail stress factor • Implement the Reasonable Accommodations • Who? When? How? • Document agreements / actions

35. W – Work Restrictions E – Effected Essential Functions C – Causes and Discussion A – Accommodations / Actions Taken N – Notes / Documentation

36. 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

37. W – Work Restrictions E – Effected Essential Functions C – Causes and Discussion A – Accommodations / Actions Taken N – Notes / Documentation

38. 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

39. Complicated Work Restrictions

40. 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”

41. FEHA Definition of a Disability “NO PUBLIC CONTACT” “REDUCED CASE LOAD” “REDUCE COMMUTE”

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

43. 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”

44. …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…”

45. FEHA Definition of a Disability • “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…

46. TOOLS YOU CAN USE

47. GREAT RESOURCES • Job Accommodation Network – JAN • Department of Fair Employment & Housing (DFEH) • Fair Employment Housing Commission (FEHC)

48. THANK YOU Monjaras & Wismeyer Group, Inc. Providing comprehensive disability compliance consulting services throughout California. Steve P. Monjaras Ph: 887.984.7969 steve@gortw.com