Disability Discrimination

A few days ago, many companies celebrated ‘Take Your Dog To Work Day’.  At an increasing number of companies, employees take their pets to work every day.  At other companies, in the ever-changing quest to be the cool kid on the block offering the latest and greatest benefits, the newest perk appears to be puppy playtime.  Google, Aetna and Intel are among the companies that have partnered with a non-profit that brings trained pets into the workplace to reduce employee stress levels for a few hours a week, while Amazon, Google, Ticketmaster, Etsy and Salesforce allow employees to bring their pets to work on a routine basis.

Photo credit: Bruin Suddleson

Pets in the workplace has been a hot topic in various forms for a few years. The issue of therapy or service dogs specifically garnered attention from the DFEH in its 2016 amended regulations requiring businesses to individually assess whether allowing a support animal at work is a reasonable accommodation for a disabled employee. The regulations define a “support animal” as “one that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.” Anecdotally, we’ve also had an increase in hospitality clients who have questions about service dogs in restaurants and hotels. Given the media coverage and public trend of pet-friendly workplaces, businesses may face an uphill battle in establishing that allowing a support animal at work would be an undue hardship, which is the threshold for denying an accommodation. However, because I’m an employment lawyer, before opening your doggy doors to your employees’ four-legged friends, consider the arguments against a pet-friendly workplace which include potential liability for asthma-related disabilities, stress-related disabilities for those who may have a fear of pets, and even potential workers’ compensation claims for pet-related injuries. If you’re considering adopting a pet-friendly workplace culture, be sure to consider these risks and to implement thoughtful guidelines around the privilege to bring a pet to work, whether as an everyday occurrence or as a reasonable accommodation.

Digital On Air sign, indicating broadcastingOn Fox’s entertainment industry-focused Pay or Play blog, associate Laurie Baddon wrote a post covering recent reports on employment agreements signed by news anchors working at television stations owned by Sinclair Broadcast Group. Laurie breaks down the controversial elements of the agreements, and examines them in the context of California employment law.

To get a better sense of the legal aspects of this national news story, we invite you to read Laurie’s post on Pay or Play.

 A disabled employee asks her employer for an accommodation. After engaging in the interactive process, it becomes clear that the accommodation requested is going to be challenging. At what point can the employer say “no” to an accommodation request because it creates an undue hardship?

If the accommodation is cost prohibitive, that can be enough to show undue hardship. But the question of undue hardship is not limited to financial burden. In other words, just because a company can monetarily afford to provide the accommodation requested, it is not necessarily required to do so.

Accommodations that are “unduly extensive, substantial, or disruptive” can create an undue hardship regardless of monetary cost. See US E.E.O.C. v. Placer ARC, 114 F. Supp. 3d 1048, 1058 (E.D. Cal. 2015). Maybe a requested accommodation would not financially break the company, but it would affect essential operational flexibility. That can be enough to show undue hardship. See Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993).

Of course, the law expects employers to accept certain costs, inefficiencies, and burdens to keep disabled employees working. Whether hardship is undue will depend on the employer’s size and resources.

Finally, remember that if no reasonable accommodation exists, and/or if the accommodation creates an undue hardship, the employer should consider reassigning the disabled employee to another vacant position. But that’s a blog post for another day.

One issue that consistently trips up employers is the interplay of laws for an employee with work-related medical issues.  This is sometimes referred to as the Bermuda Triangle of workers’ compensation, ADA/FEHA (disability), and FMLA/CFRA. 

Quite often an employee is injured, a workers’ compensation claim is opened, and the employer somehow forgets the other two prongs of the triangle.  For example, the time off is not designated as FMLA/CFRA, with the rights that go along with it.  Or the duty to engage in the interactive process and reasonably accommodate under the ADA/FEHA is somehow forgotten when the employee returns to work with restrictions.

The reality is that many legal issues start with a workers’ compensation injury, and if those claims are handled proactively, then related civil claims arising from disability can be avoided. 

 Here are some tips for handling those workers’ compensation claims:

  1. First, be proactive when the claim comes in.  Investigate what happened.  Make sure witnesses provide statements with sufficient detail.  Preserve security film and video.  Document the extent of injuries (or the lack thereof).
  2. Second, get all of that information to your workers’ compensation carrier promptly so they can properly evaluate the claim.  If the carrier isn’t responsive, follow-up. 
  3. Third, if you have a light duty program, make sure it is only for a limited time (such as 90 days).  Otherwise you risk creating a new job for someone, and no incentive to get better.
  4. And finally, don’t forget about the interactive process.  If the claim is going to end with a Compromise & Release in the workers’ compensation case, then ask your carrier to negotiate for a resignation.  And if the employee comes back to work and is not fully recovered, make sure any restrictions are documented and accommodated. 

And of course, make sure the employee is not retaliated against for filing the claim. 

Be sure to remember all three sides to any work-related injury so you can avoid getting lost in the Bermuda Triangle!

29612338 – i survived the bermuda triangle grunge rubber stamp on white, vector illustration

 

Just over a month ago, I had the pleasure of presenting a webinar entitled: “2017 Update: Accommodating Employees With Disabilities.” You can download the slides from my presentation. There were over a hundred attendees (mostly HR professionals) and I wasn’t able to answer everyone’s questions. Since other readers of this blog may have similar questions, let me answer them now.

  • Q: If an employee needs a reasonable accommodation to work reduced hours (under 30 hours/week), are we required to keep them on our company-sponsored group benefit plans since the contract with our benefit providers states employees working a minimum of 30 hours/week are eligible to participate in the company-sponsored group insurance plans?
    A: No. An employee receiving a part-time schedule as a reasonable accommodation is entitled only to those benefits that other part-time employees receive. But if they lose medical coverage because of reduced hours, they may be entitled to continue benefits at group rates at their own expense pursuant to COBRA (for employers with 20 or more employees) or, if you’re in California, Cal COBRA (for two to 19 employees). Your benefits provider can give you details on the notice.
  • Q: Does a doctor’s note have to include a specific diagnosis of a certain condition? What if it is a chiropractor treating neck & shoulder pain. Is that a condition? Do they need to be more specific?
    A: No. If the need for accommodation is not obvious, and the applicant or employee hasn’t already provided “reasonable medical documentation confirming the existence of the disability and the need for accommodation,” the employer can require a doctor’s note addressing those issues. However, employers aren’t entitled to (and have no need to know) the specific diagnosis.
  • Q: What if the doctor says to provide an ergonomic chair and we already do that and the employee just doesn’t like the chair?
    A: Employees aren’t entitled to the accommodation of their choice. If the accommodation you offer (in this case, the chair) is adequate to accommodate the employee, you’ve met your obligations.
  • Q: Do we have to pay for parking that is closer when someone has a broken leg?
    A: This is a developing area of the law. Most courts have held that employers are not required to assist a disabled employee with getting to work. However, some courts have made exceptions, such as when an employee was able to get himself to work without assistance, but the employer transferred the employee to a location that is harder to get to because of a disability. If you’re not paying for other employees’ parking, I don’t see why you would have to pay for this one’s. But again, this is an unsettled area and the answer may depend on what jurisdiction you’re in.

I’ll be speaking on disability law again on December 4, 2017 – this time in a presentation intended for lawyers – at the Bar Association of San Francisco 2017 Disability Law Update. Krista Stone-Manista of Rosen Bien Galvan & Grunfeld LLP will provide the plaintiff’s perspective and I’ll provide the defense perspective on the last year’s developments in this area of law. You can get details, register for the event, or register for the webcast here.

The obligations to reasonably accommodate disabled workers and to engage them in the interactive process make this a unique area of law. If you practice in this area (or hope to), this is a great way to learn about the last year’s developments. See you there!

39224362 – web content accessibility concept with wheelchair icon and symbol on a blue computer key for blog and online business.

The claim du jour is website accessibility.

Plaintiffs are suing businesses in alarming numbers alleging that websites are not accessible to persons with disabilities.  In this alert, Fox attorneys Carolyn Richmond, Ernest Badway and Jason Jendrewski offer practical guidance for avoiding a lawsuit.

In addition to explaining the legal issues, this article includes a comprehensive checklist to evaluate the accessibility of a website and its content.  It also includes helpful action items for conforming with the Web Content Accessibility Guidelines 2.0.

Get up to speed on this new legal issue here!

On September 27, 2017, at noon, I will be presenting a webinar entitled “2017 Update: Accommodating Employees With Disabilities.” The program is intended for human resource professionals and anyone else who fields requests for accommodation for their employer. I will explain what constitutes a disability, the extent of employers’ duties to engage employees in the interactive process to explore possible accommodations, and steps employers can take to meet their legal requirements and minimize their exposure to discrimination claims. The program will be an hour long with an additional 15-minute Q&A session.

Regular readers of this blog have heard me say many times that the disability discrimination laws require more than treating everyone equally. The obligation to reasonably accommodate means that some employees will get advantages that others don’t. Employers are expected to bear the expense and inefficiencies that this entails. Those that don’t understand the extent of that obligation expose themselves to costly litigation and government investigations. On September 27th I will provide concrete, real-world advice gleaned from decades of advising employers and defending disability discrimination claims. Don’t miss it!

 

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!