reasonable accomodation of the disabled employee presented by karin l. backstrom, esq. karin l....

REASONABLE ACCOMODATION OF THE

DISABLED EMPLOYEE

Presented by Karin L. Backstrom, Esq.

Karin L . Backstrom

Backstrom & HeinrichsPhone: 619 -851-7274

[email protected]

Background Information

How many employees? Certificated vs. classified? Who handles Human Resources? Who handles return to work or reasonable

accommodation issues?

Karin L . BackstromBackstrom & Heinrichs

Phone: 619 [email protected]

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



How many of you hate lawyers?



What is FEHA?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 . BackstromBackstrom & HeinrichsPhone: 619 -851-7274

[email protected]

Government CodeGovernment CodeSection 12920 Prohibits: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.”

mKarin L. BackstromBackstrom & HeinrichsPhone: 619 -851-7274

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

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

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).)

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 disabilitiesKarin L. Backstrom


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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

Specific Disabilities

HIV/AIDs Hepatitis Epilepsy Seizure disorder

Depression Bipolar Disorder Diabetes Multiple Sclerosis Heart Disease

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)

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

Record or History of having had any of the above conditions

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

Mental Disabilities

“Specific learning disabilities” not defined in statute– Issues with accommodating ADD employees– How about OCD?

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

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).

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


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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)


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Communicate Agreed Upon Accommodations Everyone in the chain of command needs to

know about the agreed-upon accommodations

Example: Albertson’s case.

Risks of Failure to Engage in Process

Unhappy employees Lower morale Liability in litigation


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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


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How does FEHA Arise in a Workers’ Compensation Case?

Requires the employer to reasonably accommodate the injured worker.


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What is Considered a Reasonable Accommodation?

An accommodation is considered reasonable if it does not impose an undue hardship on the employer’s business.


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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


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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

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)

Medical Marijuana

No Duty to Accommodate Medical Marijuana

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


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 & HeinrichsPhone: 619 -851-7274

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Major Federal and California Laws Regulating Employee

Leaves of Absence

California Family Rights Act (“CFRA”) Family and Medical Leave Act (“FMLA”)


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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


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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


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“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


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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


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“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


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Basis for Leave: PDL


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Basis for Leave: FEHA/ADA

“Reasonable accommodation for the known physical or mental disability of an applicant or employee”


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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


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Medical Condition Protected Under FEHA

Medical Condition includes:– Cancer– Genetic characteristics


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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


Leave Year

Calendar year Fiscal year Any fixed 12-month period A year measured by the employee’s

anniversary date


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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


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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?


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Recent Developments

FMLA/CFRA Cases– Intermittent leave for exempt employees

California Legislation – Paid Family Temporary Disability Insurance

FEHA/ADA Cases


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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. BackstromBackstrom & HeinrichsPhone: 619 -851-7274

Karin @bhemploymentlaw.com

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.


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Use of Accrued Paid Time Off: ADA & Workers’ Compensation

Unpaid, but employer must uniformly apply leave policies.


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Hypothetical

Employee is a production line worker and is injured when debris from the conveyor built gets in his eye. – Is it a workers’ compensation injury?– Is the employee entitled to FMLA/CFRA

leave?– Is it a disability?


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Hypothetical

Employee announces she needs time off to see a chiropractor.– Is it a workers’ compensation injury?– Is the employee entitled to FMLA/CFRA

leave?– Is it a disability?


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Hypothetical

Employee asks for 1 week vacation

after exhausting sick leave. Employee then advises he has been diagnosed

with multiple sclerosis. How does the employer handle the leave?


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Hypothetical

Employee informs employer by telephone that routine checkup revealed problem that requires further testing. Sounds serious. One week later, still no word from employee. What can the employer do?


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Hypothetical

New employee on the job 3 days and advises employer she requires 3.5 months bed rest due to pregnancy disability. Must the employer provide the leave?


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THANK YOU!


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reasonable accomodation of the disabled employee presented by karin l. backstrom, esq. karin l....

Documents

se mental disabilities

mental retardation

mental illness

experiences karin

basis of physical disability

psychological disorder

major life activity

physiological disease