Disability Discrimination

I was recently invited to contribute a chapter on employment law to the 2017 Israel Desk International Legal Guide. As more and more Israeli companies bring their operations to the U.S., they learn firsthand the intricacies of our employment laws. The chapter outlines six trends that I suggested that they pay attention to. They include wage and hour laws, equal pay, accommodating disabled workers, whistleblower claims, local regulations, and trade secrets.

Copyright: slidezero / 123RF Stock Photo

On the topic of trade secrets, I had the opportunity to give a presentation in Tel Aviv last month on Protecting Your Trade Secrets in Silicon Valley and Beyond to members of IATI (Israel Advanced Technology Industries – an industry group for high-tech and life science companies). You can read my chapter on legal trends and see a copy of my presentation on trade secrets.

Fox Rothschild LLP’s Israel Practice Group is adept at helping companies based in Israel with their U.S. legal needs.

A December 2016 publication from the EEOC titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights” doesn’t exactly break new ground. It does, however, highlight issues that arise repeatedly in disability discrimination cases and, therefore, bear repeating. Here are the key takeaways:

  1. The definition of what constitutes a disability is broader than many realize. The guidance tells employees: “You can get a reasonable accommodation for any mental health condition that would, if left untreated, ‘substantially limit’ your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other ‘major life activity.'” That’s the EEOC’s standard. California’s is even broader.

    Copyright: arquiplay77 / 123RF Stock Photo
    Copyright: arquiplay77 / 123RF Stock Photo
  2. As the guidance warns, employers deciding whether someone can perform the essential functions of a position or whether they pose a significant risk to others may not rely on “myths or stereotypes.” Instead, employers must base those decisions on objective evidence.
  3. Employers trying to gather objective evidence face conflicting obligations. On one hand, they need to understand the employee’s limitations so that they can make an informed decision on offering an accommodation. On the other, they are limited in terms of what they can ask by the employee’s privacy rights. The guidance cautions employees that they may need to disclose information concerning a mental condition when seeking a reasonable accommodation. A publication issued contemporaneously, “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work,” informs healthcare providers that they also may need to make certain disclosures, provided that they have their patients’ written authorization. In light of these conflicting obligations, employers should focus on the employee’s specific limitations, rather than their underlying cause or diagnosis. Employers also need to ensure that any medical information they do receive is kept confidential.
  4. The way to gather objective evidence on an employee’s limitations and possible accommodations is through the interactive process. Employers need to engage their workers in a frank discussion of the essential functions of the position, whether the employee can perform those essential functions, and what accommodations may be available. I discuss what the interactive process requires in more detail here.
  5. Flexibility is key. The employer must be open to different accommodations that may enable the employee to perform the essential functions of the job. (Here’s a list of possible accommodations.) If a particular accommodation turns out to be ineffective, the employer must consider alternatives. If no accommodation will enable the employee to perform the essential functions of the position, the employer must consider moving the employee to other available positions or placing the employee on an unpaid leave. Considering the employee for other open positions requires more than telling them to apply for whatever interests them. In California, it requires giving the employee “preferential consideration.”
  6. Employers only need to offer a leave of absence if it will help the employee get to a point where he or she can return to work in some capacity. Also, employers don’t have to grant indefinite leaves.
  7. An employer doesn’t have to hire or keep people in jobs they can’t perform.” That encouraging statement comes straight from the EEOC’s guidance. It also cautions employees that “an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.”

This remains one of the more complicated areas of employment law. Employers that don’t understand the extent of their obligations expose themselves to costly litigation and government investigations.

The year end is a time for reflection, and one theme in my practice this year has been the failure of managers (and some HR professionals) to fully understand the interactive process, and to inadvertently cause liability by imposing a 100% healed policy.

Here’s how it often works.  An employee goes out for a medical issue, sometimes work-related, sometimes not.  At some point the employee reaches out about returning to work with some sort of restrictions.

  • The manager believes these restrictions will prevent the employee from performing the job as needed, emails HR and indicates an inability to accommodate the restrictions, and the HR manager takes the manager at her/his word.
  • It is communicated back to the employee that she/he can’t return to work until 100% healed, or fully able to do the job, or similar words.
  • What we have here is a documented example of failure to engage in the interactive process, which equals liability.  Not helpful.
Speech bubbles
Copyright: rawpixel / 123RF Stock Photo

Here’s how it should work.  The same employee raises a medical issue and reaches out about returning to work with some restrictions.

  • The manager partners with HR to get more details on those restrictions, clarify the scope of those restrictions with the  employee as needed (i.e. interact), and documents those discussions.
  • They review the job description (if one exists) to see what is listed as an essential function of the job, understand how others have been accommodated (or not accommodated) in similar situations, and evaluate whether the employee can or cannot perform the essential functions of the job with any accommodation (whether requested or not).
  • They further discuss with the employee (i.e. interact) and document those discussions.
  • Care is taken to be consistent with accommodations granted (or not granted).
  • No one uses the term 100% healed.
  • What we have here is a documented example of engaging in the interactive process, which should equal no liability.  Very helpful.

While both scenarios can yield the same result, one is a trigger for liability, and one is a great defense to a disability discrimination or failure to accommodate/engage in the interactive process claim.  The choice is yours.  And remember, if at first you don’t succeed, try, try again!

 

I recently participated in a panel discussion about ADA/FEHA reasonable accommodation and interactive process issues for the LA County Bar Association. I presented on a panel with a plaintiff’s attorney and a disability rights expert/mediator.

Doctor's note
Copyright: hvostik / 123RF Stock Photo

Despite our differing points of view, there were many things we agreed upon, including the need for employers and employees to actively engage together in an interactive dialogue (not monologue) about requested accommodations, and what might work for both the employer and the employee. We agreed that it was necessary and helpful for the employer to document those communications, not only to prove they occurred if challenged, but to avoid misunderstandings. We also agreed that the employer is not required to provide the exact accommodation requested if there are other reasonable accommodations that would achieve the desired result.

Another thing we agreed on was the need for consistency in accommodations, and the problems that occur when one employee is granted a type of accommodation (such as a special parking spot or a schedule change) and another is not, and there is no clear reason why. On that issue, the attendees seemed to like my idea of keeping a Reasonable Accommodation Log, to track how certain issues are accommodated company-wide, and to promote consistency across departments or divisions.

However, one issue that sparked a lot of debate among the panelists (and attendees) was my recommendation to employers to consistently request a doctor’s note to substantiate requests for accommodations, and to facilitate the interactive process. My advice was based on my experience with employees who ask for the moon (such as the stated need for a walking desk, or first class air travel, or a job transfer to a role for a preferred supervisor), but often can’t substantiate those requests with any medical requirement. I argued that since many disabilities are not visible, that accommodation requests can’t be properly evaluated without medical justification. Plus, if you ask for doctor’s notes from some, and not others, then you run into a consistency problem. So my vote is for doctor’s notes.

Boy did I get push-back! My other panelists argued that it is hard for an employee to get a doctor’s note, and often the doctor doesn’t write what they need. They also argued that requiring a note for a small request, or for successive requests, could amount to harassment. I was challenged:  If someone is in a wheelchair are you going to require a note for every structural issue needed to grant full access? To raise the desk, widen the doorway, order transcription equipment, etc.? My answer was “of course not.” I responded that one doctor’s note should cover all of those issues.

So employers are in a bind. If you don’t ask for a doctor’s note, and you accommodate someone out of goodwill, then you could be stuck with that accommodation for a very long time, because once you give it, it is presumed reasonable, and there is a high burden to take it away (which is why some accommodations should be documented as “temporary” by the way). But if you insist on a doctor’s note, the employee feels harassed and pressured.

So what is the answer? I still believe employers should consistently get doctor’s notes, and actually review them to make sure they support the requested accommodation. But ask for them nicely, and be open to granting a temporary accommodation in the meantime.

Reasonable accommodation issues are tough.  Employees often want a lot of things that are not justified by a doctor’s note, and appropriately documenting the interactive process can be an uphill battle.

If you are in the LA area and have burning questions about how to reasonably accommodate employees under the ADA and California’s FEHA, then please come hear me speak for the LACBA on October 27th.  Topics for discussion will include:

  • Disability Leave:  How long is too long?  How long do you have to keep the job open during the leave?
  • Interactive Process Communications:  If there is no documentation, can you prove they occurred?
  • Undue Hardship:  Is it ever too hard to accommodate?  How expensive is too much?
  • Assistive Technology:  How does new technology change what’s reasonable? (i.e., is everyone entitled to a headset and a standing or walking desk?)

If you can’t make it, look for a blog post next week on tips discussed and lessons learned.

Trying to keep track of all of California’s paid sick leave requirements is a daunting task. The state has its own rules and then so do seven municipalities, with Los Angeles joining the list July 1, 2016. Wouldn’t it be great if there was a single chart that contained all the requirements? Well now, thanks to Tyreen Torner, there is. Click on the link to download a PDF of the California Paid Sick Leave Rules Chart.

Copyright: olivier26 / 123RF Stock Photo
Copyright: olivier26 / 123RF Stock Photo

Are you curious about how the accrual cap rules in Oakland compare to the accrual cap rules in Santa Monica? Of course you are! Don’t be afraid to admit it. Are you wondering how the definition of sibling in San Francisco compares to the definition of sibling in San Diego? Just look it up. It’s all there. Right at your fingertips. Thank you Tyreen!

Copyright: iserg / 123RF Stock Photo
Copyright: iserg / 123RF Stock Photo

Scenario 1: Someone walks in to one of your locations and requests an application. The applicant has one arm. The manager doesn’t think there’s any way that someone with one arm can do the job. Can the manager tell the applicant not to waste time applying?

Scenario 2: Suppose that an applicant comes in, requests an application, and asks the manager for help filling it out. Can the manager tell the applicant that, if he can’t fill out the application, he won’t be able to do the job?

Scenario 3: An applicant for a retail position comes in wearing a hijab (a veil that covers the head and chest, traditionally worn by some Muslim women). The manager doesn’t know anything about the applicant’s religion, but doesn’t think your customers will be comfortable around a worker wearing a hijab. Can the manager tell the applicant that wearing a hijab violates the company’s dress code?

Scenario 4: You have two open positions. One in San Francisco and one in Sacramento. The best applicant for the one in SF is a man who negotiates the salary fairly aggressively. The best applicant in Sacramento is a woman who does not. You like them both. Can you pay the man more because he negotiated harder? Can you pay him more because he’ll be working in a location with a higher cost of living?

As regular readers of this blog know, the answer to all these questions is “no.” You can find more information on scenarios 1 and 2 here, scenario 3 here, and scenario 4 here.

Of course, it’s not enough for human resource managers to know the answers. Your workers who handle job applications need to be trained on these issues, too. Is training expensive and time-consuming? Hardly, especially when you compare it to the cost in terms of time and money of getting sued.

Rather than coming up with New Year’s resolutions for myself, I find it much easier to come up with resolutions for others. Here are my suggested resolutions for California HR professionals:

Copyright: filmfoto / 123RF Stock Photo
Copyright: filmfoto / 123RF Stock Photo
  1. Be fair. Evaluate your company’s payroll in preparation for California’s Fair Pay Act. Some may think that we’ve beaten this dead horse to the point where PETA needs to get involved. But the new legal requirements, vague standards, double damages, and burdens of proof imposed by this legislation could be a game changer.
  2. Do more than the minimum. Make sure all workers are paid according to the new California minimum wage. This increase to $10 on January 1st affects not just entry level employees, but even exempt employees who must be paid a multiple of the minimum wage. There’s also a new minimum salary for exempt computer professionals.
  3. Stay out of court. If you don’t already have arbitration agreements with your employees, consider implementing them. I discussed the pros and cons here.
  4. Trust, but verify. If your company uses the E-Verify system to confirm that workers are authorized to work in the US, make sure that your use conforms with the new legal requirements.
  5. Be accommodating. Ensure that your managers understand their obligations to accommodate disabled applicants and employees or at least to notify you when situations arise. You can find a list of possible accommodations here.
  6. Think globally/Act locally. Whether it’s San Francisco’s $12.25 minimum wage, a local paid sick leave ordinance in Oakland, or Los Angeles’s Citywide Hotel Worker Minimum Wage Ordinance, pay attention to local requirements where you operate.

If those don’t work for you, you can always go back to the standard, boring New Year’s resolutions — things like working out more or losing weight. And no, I’m not suggesting that you need to lose weight. You look terrific.

As an alum of USC Law, I have been particularly interested in the news surrounding USC’s termination of football coach, Steve Sarkisian.  In fact, several of my colleagues have already blogged about it here and here.

When the coach was fired, several clients immediately asked me: “Can USC do that?”  The general sense was that something felt amiss.

My response was that there must have been some contract provision that allowed for termination in these circumstances, otherwise the termination for someone who appeared to have a drinking problem (a disability) is risky.  Turns out I was right – it was risky.

In Sarkisian’s complaint against USC he alleges that “USC kicked him to the curb” instead of supporting him, accommodating him, and honoring his contract.

Having defended many disability and accommodation claims, I know that the facts alleged are generally hotly contested.  In fact, USC has already responded that most of the lawsuit is “patently untrue,” and rather than asking for an accommodation the coach denied he had a problem and “resisted attempts” to provide him help.  USC’s statement indicates that it will “defend these claims vigorously.”

All of that said, what are the lessons here for California employers?

First, alcoholism is a disability that must be accommodated.

Second, even so, alcoholism does not excuse misconduct at work, especially misconduct that occurs before a request for accommodation is made (or the need for an accommodation becomes apparent).

Third, steps taken to engage in the interactive process matter.  In California, there can be a separate claim for failing to engage in the interactive process.  It is no surprise that Sarkisian’s complaint includes this claim.  This California specific claim makes documentation of the interactive process, and the timing of efforts in relation to finding out about the disability, all the more critical.

Fourth, it appears from the complaint that USC got involved in the coach’s medical treatment.  For most employers, that would be an invasion of privacy and is not recommended.

Fifth, the complaint alleges that USC put the coach on a leave of absence so he could get treatment, and then terminated him the next day.  If true, this would not be a helpful fact.  Timing matters, and a quick switch can be challenging to defend.

Finally, while USC may have had good reasons to move forward with a termination it knew would be contested to preserve its football program, most employers prefer to avoid hotly contested legal battles (and the associated costs).  Therefore, before terminating an employee you suspect has a dependency issue, seek legal advice to ensure you are comfortable with the anticipated risks, and have taken whatever steps necessary to mitigate those risks.

USC likely accepted its risks with open eyes.  But unless you are ready to have a former employee publicly allege that you “kicked him to the curb” when things got rough, the best advice is to proceed with caution before firing an employee with an addiction issue.

 

The Bar Association of San Francisco is presenting a seminar: 2015 Disability Employment Law Updates. It will take place on December 8, 2015, from noon to 1:30, at the BASF Conference Center, 301 Battery St., 3rd Floor, San Francisco, CA 94111.

Krista Stone-Manista of Rosen Bien Galvan & Grunfeld LLP will present the plaintiff’s perspective and I’ll present the defense perspective. Jinny Kim, Director, Disability Rights Program, Legal Aid Society – Employment Law Center will moderate. The program is approved for 1.25 hours of of MCLE in Elimination of Bias.

You can register to attend the event in person here or to receive the webcast here. If you’d like a printable flyer, you can download it here (pdf). I hope to see you there!