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REASONABLE ACCOMODATION OF THE DISABLED EMPLOYEE

REASONABLE ACCOMODATION OF THE DISABLED EMPLOYEE. Presented by Karin L. Backstrom, Esq. Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com. Background Information . How many employees? Certificated vs. classified? Who handles Human Resources?

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REASONABLE ACCOMODATION OF THE DISABLED EMPLOYEE

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  1. REASONABLE ACCOMODATION OF THE DISABLED EMPLOYEE Presented by Karin L. Backstrom, Esq. Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  2. Background Information • How many employees? • Certificated vs. classified? • Who handles Human Resources? • Who handles return to work or reasonable accommodation issues? Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  3. Self-Critical Analysis Privilege • Does apply to my presentation and any comments or questions posed • Please use this time to ask questions, interrupt and share your experiences Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  4. How many of you hate lawyers? Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  5. What is FEHA? • California law that protects employees and job applicants from harassment or discrimination in compensation or in terms, conditions, or privileges of employment. Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  6. Government Code Section 12920 Prohibits: • Discrimination on the basis of physical disability, mental disability, and medical condition. • Declares public policy of the State of Ca. to “protect and safeguard the right of all persons to seek, obtain, and hold employment without discrimination.” m Karin L. Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  7. Who is protected? When an employee has a • Physical Disability • Mental Disability • Medical Condition • (Gov’t Code §12920)

  8. Medical Condition also protected • Cancer • Impairments related to cancer or a record or history of cancer • Genetic Characteristics • Scientifically identified gene known to be a cause of a disease, or increase the risk of a disease or disorder • Although not associated with any present symptoms

  9. Physical Disability • any physiological disease, disorder, condition…or having record of such impairment, or being regarded as having or having had such an impairment that limits a major life activity • without regard to mitigating measures.” • (Gov’t Code §12926(k).)

  10. FEHA Definition of Mental Disability Mental Disability -- any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities that limits a major life activity Record of, regarded as, associated with Per se mental disabilities Karin L. Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  11. Major Life Activity? • Working • does not matter if employee is only limited in a particular job of working • Example: professional baseball player who can no longer throw far enough, or police officer whose depression prohibits him from carrying firearm • Broadly construed—nearsighted is enough

  12. Specific Disabilities • HIV/AIDs • Hepatitis • Epilepsy • Seizure disorder • Depression • Bipolar Disorder • Diabetes • Multiple Sclerosis • Heart Disease

  13. Less Clear Cases • Hypersensitivity to smoke • Perfume? • Wrist injury that required restrictions on lifting, pulling and pushing • Pain alone? • (Artega v. Brinks (carpal tunnel limited e’ee’s ability to play soccer but not to work as a messenger)

  14. Obesity??? • Claimant who alleges disability based on weight must produce evidence of a physiological systemic basis for the condition. (Cassista v. Community Foods) • Beware of San Francisco City Ordinance that protects employees based on weight alone

  15. Record or History of having had any of the above conditions

  16. Regarded As Disabled • This includes being regarded as having a condition that currently has no disabling effect but MAY BECOME an impairment limiting a major life activity • Example: Hypertension is disability under FEHA even though employee may have no current interference with job duties • Beware: Radio Shack case –no evidence that reduction of stress would improve hypertension

  17. Mental Disabilities • “Specific learning disabilities” not defined in statute • Issues with accommodating ADD employees • How about OCD?

  18. Specific Case Law Examples • Post-traumatic stress disorder (bank employee held at gunpoint later unable to deal with strangers) • Depression and personality disorder • Obsessive Compulsive Disorder

  19. Specific Exclusions • Current use of unlawful drugs or controlled substances • Compulsive gambling • Gender Identity disorders not resulting from physical impairments or other disorders (be mindful of additional protection for employees with gender identity disorders).

  20. Employers are Required • To make reasonable accommodation for the known physical or mental disability of an injured worker. • To comply with work restrictions stated by the primary treating doctor, qualified medical evaluator or agreed medical evaluator. • Can the employer reasonably do both? Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  21. Interactive ProcessNecessary Steps: • Meet with employee / injured worker • Document any requests by employee • Bring in consultant if necessary • Seek outside counsel • Avoid litigation by properly interacting with employee (and developing proof of same) Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  22. Communicate Agreed Upon Accommodations • Everyone in the chain of command needs to know about the agreed-upon accommodations • Example: Albertson’s case.

  23. Risks of Failure to Engage in Process • Unhappy employees • Lower morale • Liability in litigation Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  24. FEHA Process Cuts Both Ways A California appellate court decided that an employer isn’t liable for failure to provide an accommodation under FEHA if the disabled employee doesn’t make a good faith effort to communicate his needs. Hessong v. City and County of San Francisco, A113744, 8/30/07. Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  25. How does FEHA Arise in a Workers’ Compensation Case? • Requires the employer to reasonably accommodate the injured worker. Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  26. What is Considered a Reasonable Accommodation? • An accommodation is considered reasonable if it does not impose an undue hardship on the employer’s business. Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  27. Examples of Employment Reasonable Accommodations • Changing the job duties • Changing the work shift • Accommodating work schedules • Relocating the work area • Providing mechanical or electrical aids • Providing leave for medical care Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  28. More Complicated • Reassignment to a vacant position • (What about CBA?) • Employer has duty to research available positions and offer them to disabled employee • Beware of recent case requires employees to determine if alternative position “May Become Available.” • Disabled employee entitled to “preference” in reassignment of existing employees

  29. No Duty to Create New Position • Employer not required to promote disabled employee or create new position to accommodate disabled employee • Not required to hire another employee to do this person’s job (Example: Burbank teacher)

  30. Medical Marijuana • No Duty to Accommodate Medical Marijuana

  31. Another Wrinkle: When Workers’ Compensation Law Require Leaves of Absence • Employers may be required to provide a leave of absence during recovery. • Employers cannot discriminate against employees injured in the course and scope of their employment. Karin L. Backstrom & Associates Phone: 619 -236-8550 kbackstrom@dietzgilmor.com

  32. Amount of Leave:Workers’ Compensation • Duration indefinite under Barnes v. WCAB, 216 Cal. App. 3d 524 (1989). • Do NOT terminate before an injured worker is declared “permanent and stationary.” Karin L. Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhwmploymentlaw.com

  33. Major Federal and California Laws Regulating Employee Leaves of Absence • California Family Rights Act (“CFRA”) • Family and Medical Leave Act (“FMLA”) Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  34. Eligibility: FMLA and CFRA • At least one (1) year of service • Worked at least 1250 hours during 12 months immediately prior to the date of leave • Be employed at a worksite which employs 50 or more employees within 75 miles of the worksite Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  35. Important DistinctionBetween FMLA and CFRA • FMLA includes pregnancy as a serious health condition • CFRA does NOT! • CFRA = post-birth bonding leave only • PDL covers pregnancy-related disabilities Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  36. “Serious Health Condition” Under FMLA/CFRA “Illness, injury, impairment, or physical or mental condition that involves: …” • Inpatient Hospital Care • 3 Days’ Absence Plus Treatment, Plus • Treatment two or more times, or • One treatment with a continuing regimen of treatment • Multiple Treatments Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  37. Basis for Leave: FMLA & CFRA • Disability due to pregnancy, childbirth, or related medical conditions • Birth or placement for adoption or foster care of a child or to care for a child • Care for child, spouse, or parent with serious health condition • Serious health condition that makes employee unable to perform functions of employee’s position • NOTE: Under CFRA, does not include disability due to pregnancy, childbirth, or related medical conditions Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  38. “Serious Health Condition” Under FMLA/CFRA • Pregnancy or Prenatal Care (FMLA only) • Chronic Conditions Requiring Treatment • Permanent/Long-Term Conditions Requiring Supervision • Certification • Fair Employment Housing Commission form • United States Department of Labor form Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  39. Basis for Leave: PDL Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  40. Basis for Leave: FEHA/ADA • “Reasonable accommodation for the known physical or mental disability of an applicant or employee” Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  41. Limits A Major Life Activity • Limits means makes the achievement of the major life activity difficult and does not take into account mitigating measures • Major life activity is broadly construed and includes physical, mental, and social activities and working • Special certification form Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  42. Medical Condition Protected Under FEHA • Medical Condition includes: • Cancer • Genetic characteristics Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  43. Amount of Leave: FMLA/CFRA • 12 work weeks in a 12-month period or leave year • 12 work weeks = 60 working days for a full-time employee who works 5 eight-hour days per week • For employees who work more or less than 5 days per week, or who work alternative work schedules, leave is calculated on a pro rata basis Karin L. Backstrom & Associates Phone: 619 -236-8550 kbackstrom@dietzgilmor.com

  44. Leave Year • Calendar year • Fiscal year • Any fixed 12-month period • A year measured by the employee’s anniversary date Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  45. Leave Year • 12-month period measured forward from the date the employee first takes FMLA/CFRA leave • “Rolling” 12-month period measured backward from the date the employee uses any FMLA/CFRA leave • Must advise employee of method used by employer to calculate leave Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  46. Amount of Leave: ADA/FEHA • No minimum or maximum amount of leave required as a “reasonable accommodation” by ADA or FEHA. • Employer not required to provide an indefinite, open-ended leave of absence as a “reasonable accommodation.” • Length of leave? Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  47. Recent Developments • FMLA/CFRA Cases • Intermittent leave for exempt employees • California Legislation • Paid Family Temporary Disability Insurance • FEHA/ADA Cases Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  48. Use of Accrued Paid Time Off: FMLA and CFRA • Paid Vacation: Employer may require or employee may elect to use any paid vacation or paid time off during leave. • Paid Sick Leave: • FMLA: Employer may require or employee may elect to use any paid sick leave for the serious health condition of employee or family member • CFRA: Same as FMLA, except employer cannot require employee to use paid sick leave for the serious health condition of family member without employee’s consent Karin L. Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin @bhemploymentlaw.com

  49. Use of Accrued Paid Time Off: PDL • Paid Vacation: Employee may elect at her option to use paid vacation or paid personal time during her PDL. Employer cannot require employee to do so. • Paid Sick Leave:Employer may require, or employee may elect to use, paid sick leave during her PDL. Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

  50. Use of Accrued Paid Time Off: ADA & Workers’ Compensation • Unpaid, but employer must uniformly apply leave policies. Karin L . Backstrom Backstrom & Heinrichs Phone: 619 -851-7274 Karin@bhemploymentlaw.com

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