At the 2017 PARMA Annual Conference, Yvonne Lang and Nichole Minkow from the firm Pearlman, Borska, & Wax talked about the challenges associated with reasonable accommodation of disabled workers.
Interactive Process Conundrum:
- California law requires employers to engage in a “timely, good faith, interactive process.”
- Required for all employees AND applicants for jobs.
- This obligation often interferes with management ideas of how to effectively run their business.
- Disability discrimination is the most common complaint filed with DFEH in California.
Laws protecting disabled employees in California:
- Workers’ compensation
- Family medical leave act (FMLA)
- California Family Rights Act (CFRA)
- Americans with Disabilities Act (ADA)
- Fair Employment and Housing Act (FEHA)
- Pregnancy Disability Leave (PDL)
- Employment discrimination claims do not require a tort claim because they are already subject to a comprehensive administrative process. These cases are often driven by a quest for attorney fees as getting an award of any benefits allows the attorney to collect their full fees from the defendant.
- The most common type of EEOC claim in California the last three years has been an allegation of retaliation. Almost half the claims filed alleged this along with many other forms of discrimination including race, disability, sex, age, national origin, and religion.
- When managing leave of absence, the first thing you have to determine is WHICH leave laws apply? Ask the question, do not assume. Injuries often involve several different types of leave of absence laws. You also have to know if the leave requires a reasonable accommodation, and whether the employer has an obligation to maintain health insurance and other benefits during the leave of absence.
- Technically, you are only required to continue benefits through the period of protected leave only. It is very important that this process is done consistently. Too often employers forget to stop the benefits and they continue well past the time required by law.
- It is important that employers send out FMLA/CFRA notices on workplace injuries so these leaves are running concurrently. Otherwise you risk an employee being released to work under their workers’ compensation claim then choosing to take additional time off under FMLA.
- First responders eligible for 4850 benefits does not toll FMLA until the 4850 benefits are exhausted no TD workers’ compensation benefits begin.
- There is a common misconception that the employer cannot engage in the interactive process without their workers’ compensation attorney involved. These are two different issues. You are entitled to engage in the interactive process with your worker without the attorney present. You are not talking about their claim, you are talking about their leave of absence.
- You do not wait until the employee is MMI to engage in the interactive process. The interactive process starts at the time of injury and continues throughout the claim.
- If the injured worker wants their union representative present for discussions about the interactive process, you must allow this. Their presence can be helpful in helping them fully understand the process and the goals of return to work.
- The employer has a duty to take positive steps to accommodate the employee’s restrictions unless it would create an undue hardship. The undue hardship can be financial or because of extreme difficulty in allowing the accommodation. The undue hardship defense is extremely difficult to prevail on.
- Be careful not to interfere with the leave of absence process. This includes discouraging employees from using leave, misclassify the leave, asking for a medical diagnosis and failing to send out the appropriate forms.
- Consistency is the key. Have a temporary modified/alternative duty policy and stick to it. This includes the duration the alternative duty will be available. Inconsistent behavior in application of the policy establishes a new normal.
- If job accommodation is not possible, then you must look at job reassignment. The employer has a duty to ascertain and offer suitable positions which the employee is qualified to perform. The employee is entitled to preference over existing employees wen considering reassignment.
- Reasonable accommodation is not creating a new job, moving another employee out of a job or violate another employees rights to create a job.
- Reasonable accommodation is not work from home UNLESS you allow other employees to work from home.
- If you have met all interactive process obligations and cannot make a reasonable accommodation and found no vacant jobs available the employee is qualified to perform, then you are not required to keep them on an open-ended leave of absence until a position opens. A leave of absence must have an end date. If it does not, then you are in a termination situation.
- The inability to work for a particular supervisor is not a reasonable accommodation so long as that supervisor’s conduct is consistent to all employees.
- If you suspect an employee has a disability that requires accommodation, provide them with a claim form. Don’t wait for them to ask. Be proactive.
- California labor code allows for a 132a claim which is discrimination based on a workplace injury or workers’ compensation claim.