Accommodating Bad Behavior: The Limits on Disciplining Disabled Employees

1. Accommodating Bad Behavior: The Limits on Disciplining Disabled Employees Presented By: Eileen O’Hare-Anderson January 31, 2014

2. Agenda • Overview: • Relevant Laws; Disability Defined; Reasonable Accommodation • Notice of Employee’s Disability & Reasonable Accommodation • Interactive Process • Where Disability Meets Discipline • When No Accommodations Are Available

3. Absenteeism, Tardiness, Emotional Outbursts & Alcoholism: When is an employee's bad behavior disability-related and what bad behaviors are employers required to accommodate?

4. What are the Relevant Laws? • Federal • Americans with Disabilities Act (ADA) • Family and Medical Leave Act (FMLA)

5. What Is a Disability? • A mental or physical condition that limits a major life activity • Ignore mitigating measures • Even if impairment is episodic/in remission; • Having a record of such an impairment; or • Being regarded as having such an impairment.

6. What About Drug or Alcohol Use? • The ADA specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol • However, the ADA provides limited protection from discrimination for • Recovering drug addicts, and • Alcoholics

7. Reasonable Accommodation • Employer must provide reasonable accommodation • Permit Employee to perform essential functions • Employee must satisfy pre-requisites of the position • Employee must be able to perform the essential functions of the position • With or without reasonable accommodation

8. Focus on Essential Functions of the Job • These are job requirements that cannot be compromised • Update job descriptions to include all Essential Functions to: • Yield a better applicant pool • Provide performance standards

9. What are the Essential Functions of the Job? • Several Factors to Consider • Does the position exist to perform a particular function? • Are other employees available to perform function? • Degree of expertise or skill required to perform function

10. Evidence of Essential Job Functions • Established Job Descriptions • Terms of Collective Bargaining Agreement • Time Spent Performing Particular Function • Work experience of past employees in the job or current employees • Consequences of the failure to require the employee to perform a particular function • Employer’s Judgment

11. Evidence of Essential Job Functions TRUE/ FALSE/ MAYBE Attendance is an essential job function for every job.

12. Notice of an Employee’s Disability and Reasonable Accommodation

13. Case Study An individual applies for a custodian position with the District. He states that he does not have the required high school diploma, but he took special education classes. When the applicant arrives for the written exam, he arrives with a vocational rehabilitation counselor who asks if she or a District employee can read the exam to the applicant. The applicant explains that he is illiterate. Is the District on constructive notice that the applicant has a disability? No

14. Notice of Disability • Notice is either: • Actual Notice; or • Constructive Notice • When the fact of disability is the only reasonable interpretation of the known facts.

15. Case Study During his evaluation meeting, campus police officer Jon yells at his supervisor and storms out of the office while yelling profanities. The Department also received notice that law enforcement had to respond to Jon’s ex-wife’s house when Jon was acting erratically and refusing to leave. Employees have also heard Jon say things like, “It doesn’t matter anyway,” “I’m not sure if it’s worth it,” and “It doesn’t matter how this ends.” Can you send Jon for a psychological fitness for duty exam? Yes, But Under Limited Circumstances

16. Fitness for Duty Exam • Employer May Require Fitness for Duty Exam • To Determine if Employee is Able to perform essential job functions • Must be • job-related • consistent with business necessity • High Standard

17. Case Study This year, Dan has been frequently absent for medical appointments, and took a 14 day medical leave in August to attend a drug rehab program. After the Thanksgiving holiday, Dan was expected back at work from Thanksgiving break on November 29, but he did not return. The District employer sent a notice to Dan’s house that the District considered Dan to have abandoned his job. Dan did not receive the notice because he was in Nevada, driving around for six weeks as a result of a manic episode related to his bipolar disorder. The District was unaware of Dan’s condition until he called the District from a mental hospital in early January. After Dan was released without restrictions, he requested reinstatement.

18. Case Study Was the District on constructive notice of Dan’s disability? NO Is the District required to reinstate Dan as a reasonable accommodation? NO

19. Interactive Process

20. Interactive Process • The Process by Which Potential Reasonable Accommodations Are Identified • In-person meeting preferred • May involve multiple meetings • Must be done in good faith • Be flexible • Employer has ultimate discretion to select appropriate accommodation

21. What Triggers the Employer’s Duty to Engage in the Interactive Process • Employee’s request for a reasonable accommodation • Evidence that a prior accommodation is not effective. • Periodic check-in regarding temporary accommodations.

22. Interactive Process • Allow Employee’s Representative to Attend • Schedule at Convenient Time • Consider meeting by telephone • Create Detailed Record • Consider tape recording • Take notes • Prepare written summary to document your district’s good faith

23. Interactive Process • Consider • Preferences of Employee • Recommendations of Doctors • Input of family members and other representatives • Decision must be supported by specific, legitimate reasons

24. Interactive Process • Both Parties Must Demonstrate Good Faith • Consider Everything • Be Flexible • Meet More Than Once, as Necessary • Continuing obligation; don’t drop the ball • Condition may change • Employer Has Ultimate Discretion to Select Appropriate Accommodation

25. Case Study Jim is often late to work. His supervisor calls him in to talk about his lateness. Jim says he has been having some issues with getting out of his house on time. He does not offer any more information. Jim is told that if he is late again, he will be disciplined. Jim says he will try to be better about getting to work. Next week, Jim is late to work again and he is reprimanded. After receiving the reprimand, Jim is late three more times. He receives notice of a proposed one-day suspension. During the Skelly meeting on the suspension, he tells the HR Manager that he is late because he suffers from OCD. Do you move forward with the discipline? Probably Not

26. Case Study Jim requests to work from home to accommodate his OCD, which he says causes him to take many hours to get ready for work, resulting in excessive tardiness and absenteeism. After Jim is provided the accommodation of a flexible start time, he continues to miss work. Can Jim now be disciplined for excessive absenteeism? Probably Not, Should Engage In Interactive Process Again And Try To Find Another Reasonable Accommodation

27. Where Disability Meets Discipline

28. Case Study The District is aware that Bill has bipolar disorder. Lately, he has been frequently tardy, distracted, and irritable. Bill’s supervisor has a meeting with Bill to talk about his work performance and Bill throws down his notepad, yells at his supervisor about the unfair treatment, and storms out of the room. Bill then takes a medical leave of absence related to his disorder. Can the District discipline him for his misconduct during the meeting? Probably Not

29. Behavior Resulting From Disability • Conduct resulting from disability • is considered part of the disability? • employer cannot discipline for conduct related to disability • There are narrow exceptions Gambini v. Total Renal (9th Cir. 2007) 486 F.3d 1087.

30. Behavior Resulting from Disability • You can’t discipline Bill, but what can you do? • Interactive process meeting is probably appropriate • Current accommodations are not working. • Exhaust all options before turning to disability retirement

31. Case Study If Bill’s recent tardiness and poor job performance are not due to Bill’s disability, may the District discipline him? Yes

32. Case Study Change the Facts: During the counseling meeting, Bill also told his supervisor that he was going to make him “pay” for the way he was treating Bill. While on leave, Bill sent his coworkers voicemails and text messages threatening to “get them” for what they did to Bill. The co-workers have complained to the City about Bill’s threats. Can you discipline Bill for his misconduct? Probably

33. Threats or Violence It is unlawful discrimination to discipline an employee for conduct caused by or related to his/her disability, except forconduct in the form of threats or violence against co-workers. Wills v. Superior Court (2011) 194 Cal.App.4th 312.

34. Behavior Related to Disability • When may an employer discipline an employee for conduct that is related to his/her disability? • Extremely fact sensitive analysis • Always some risk if you discipline

35. Discipline for Behavior Related to Disability • Factors to consider: • Was misconduct a result of the employee not properly controlling a controllable condition? • Level of misconduct • Did the employer know about the condition beforehand? • Engaged in the interactive process yet? • Type of job • Threats or violence against co-workers • How has agency disciplined for similar misconduct by others?

36. Case Study Jody is a marginal employee with attendance problems. Without notice, she fails to report to work on Wednesday. On Thursday, she tells you, her supervisor, that she was too sick to call in. You hear from others that Jody had been at a local bar drinking heavily Tuesday night and that she is often there getting drunk. You suspect that Jody may be an alcoholic. Should you discipline Jody for failing to report to work? Yes, To The Same Extent That You Would Discipline Any Employee For Failing To Call In

37. Alcoholism and Drug Addiction The ADA allows employers to hold an employee with alcohol or illegal drug abuse to the same standards of performance and behavior as non-alcoholics. 42 U.S.C. § 12114(c)(1), (2), (4).

38. Alcoholism and Drug Addiction • Alcoholism and drug addictions • Recognized disabilities, but the ADA treats them differently than other disabilities. • Employers may discipline recovering addicts for disability-related misconduct. • But may not discriminate based on addiction status (e.g. not hire someone because he is a recovering drug addict). 42 U.S.C. § 12114(c)(1), (2), (4).

39. Case Study Because of her history of absenteeism, you decide to issue Jody a notice of intent to suspend for 2 weeks. During the Skelly meeting, Jody tells you that her absenteeism is a result of her drinking because of her depression. Can you still discipline her? It’s Unclear, But Probably Not

40. When No Accommodations Are Available

41. Due Process Considerations • Classified employees with property interest must receive pre- and post-disciplinary due process • Notice of Intent • Skelly Conference (any reasonable accommodation not considered?) • Final Notice • Opportunity for an evidentiary appeal • At-will employees must receive written notice of reasons supporting inability to accommodate

42. 39-Month Reemployment List for Classified Employees • After all leaves exhausted • Paid and unpaid • If employee still medically unable to return to work • Employee placed on 39-month list • Must apply for PERS disability for employee • Must engage in interactive process

43. Disability Retirement • PERS Employer has duty to file when eligible employee is believed to be disabled • STRS employers may file but no duty to file. • Eligible Employee is Qualified to Receive Benefit if: • Substantially incapacitated from performance of usual and customary duties. • Incapacitation is permanent or for an extended and uncertain duration.

44. Pay Status Pending Disability Retirement • Options for PERS employees: • Paid admin leave • Involuntary unpaid leave of absence (or forced to use accrued paid leaves)

45. Education Code section 87789 – Academic Employees • An Academic Employee in a district adopting Ed. Code section 87789 may be granted: • A leave of absence up to 30 days beyond final determination by STRS of the employee’s eligibility for disability benefits. • If STRS determines the employee is eligible for the term of disability benefits, leave shall be extended for the term of disability up to 39 months.

46. Due Process When Employee Forced Out of Working Status • Before placing on involuntary unpaid leave, district must provide the employee: • Written notice of the charges and issues which were considered • Opportunity to be heard • Similar to Skelly proceedings Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95 [73 Cal.Rptr.2d 523].

47. Due Process When Employee Forced Out of Working Status • Recent case held that pre and post-deprivation due process is required. • Employer must provide an opportunity for a post-deprivation evidentiary appeal. • If an employer forces an employee out of working status, while the disability retirement application is pending with PERS, the employer bears the risk that a court may find that the employee was unlawfully “separated” and issue a back pay award.

48. Defenses to Refusal to Accommodate • Undue Hardship • Very Difficult Burden for Public Employers • Factors • Nature and cost of accommodation • Overall financial resources of Employer • Number of Employees impacted by accommodation • Terms of collective bargaining agreement

49. Thank You! Eileen O’Hare-Anderson Partner | Fresno Office 559-256-7806 | eanderson@lcwlegal.com