The Bar Association of San Francisco is presenting a seminar: 2018 Disability Employment Law Updates. It will take place on December 11, 2018, from noon to 1:15, at the BASF Conference Center, 301 Battery St., 3rd Floor, San Francisco, CA 94111.

Ben Bien-Kahn of Rosen Bien Galvan & Grunfeld LLP will present the plaintiff’s perspective and I’ll present the defense perspective. The program is approved for 1 hour of of MCLE and is sponsored by the Equality Committee on Disability Rights of the Bar Association of San Francisco.

You can register to attend the event in person or to receive the webcast here. I hope to see you there!

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

 

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 hope you’ll join my Fox colleagues Keith Chrestionson and Jaemin Chang and me on January 27 for the next in our series of breakfast briefings in our San Francisco office.  Our breakfast series explores various topics of interest to the Bay Area’s business communities in informal presentations and interactive Q&A sessions.  This session will focus on new California laws and local ordinances that are most likely to affect employers throughout the state, including:

  • Legalization of marijuana and its effect on the workplace
  • Amendments to the California Fair Pay Act
  • “All gender” bathrooms
  • New rules for meal and rest periods
  • Domestic violence leave
  • Expanded prohibitions on smoking at work
  • State disability and paid family leave benefits
  • Local ordinances (parental leave, minimum wage)

The event will take place at:

345 California Street
Suite 2200
San Francisco CA 94104-2670
(View Google Map)

The presentation and Q&A session will begin at 8:30 a.m., followed by a networking reception at 9:30 a.m. Breakfast and refreshments will be served.  Please register here by January 25.

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!

Michaelin Higgins-Williams worked for Sutter Medical Foundation as a clinical assistant. But she found her interactions with her boss and human resources stressful. And this is California, where no one should have to work with stress. That’s why we have yoga.

Because Higgins-Williams was experiencing the dreaded stress, her doctor took her off work and her employer granted her leave under the Family Medical Leave Act and the California Family Rights Act. When she exhausted that leave and returned to work, her supervisor continued to be mean. She noted areas of Higgins-Williams’ performance that needed improvement, made plaintiff work hard, and was “curt and abrupt.” Outrageous, right?

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

It got so bad that, on one occasion, the supervisor yelled. And I’m not talking about loudly telling her to have a nice day. According to the complaint, the supervisor yelled AT Higgins-Williams. Higgins-Williams left work and said she’d only come back if she was given a further leave, specific work hours, and a different supervisor “forever.” Sutter didn’t agree to that and ultimately terminated Higgins-Williams, who sued.

The court granted summary judgment for the employer citing earlier cases saying that not being able to work under a particular supervisor is not a disability under the Fair Employment and Housing Act. The court of appeal affirmed. It noted that the outcome could be different if the supervisor was doing something other than “standard oversight of job performance.” But that wasn’t the case here.

Takeaway: Employees in California don’t get to pick their supervisors – at least not yet.

For years we’ve been following legal developments on how employers deal with workers who attribute bad behavior to a disability. (We wrote about it here and here and here, for example.) Last summer, we wrote about the 9th Circuit’s decision in Weaving v. City of Hillsboro, involving the termination of a police sergeant for bullying and intimidation. Weaving, who blamed ADHD for his bad behavior, sued and recovered over $630,000 in damages.

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

The court of appeal reversed. The court distinguished between being able to interact with others (which is a major life activity) and being able “to get along with others” (which presumably is not). According to the court, “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile work environment for their colleagues.”

Weaving asked the Supreme Court to take the case and last month it declined to do so. As a result, the rules for when employers can discipline employees for misbehavior that they attribute to a disability remain unclear.

The best things that employers can do to protect themselves in these situations are:

  1. If there’s an identified disability, engage in a thorough, well-documented interactive process;
  2. Err on the side of protecting workers from bullying, threats, or worse, and
  3. If you’re in California, understand how the state interprets these rights more broadly than federal law does.
Copyright: stockbroker / 123RF Stock Photo
Copyright: stockbroker / 123RF Stock Photo

One of our ongoing themes has been the extent of an employer’s obligation to accommodate disabled employees. A recent unpublished court of appeal decision – Swanson v Morongo Unified – illustrates this point.

Swanson, an elementary school teacher, had recently been treated for breast cancer. She asked to be assigned to teach 2nd grade, as she had recently done, instead of being assigned to work with 5th graders. Her fragile health, she said, made it difficult to do the added work a new assignment entailed.

But the school district assigned someone else to teach 2nd grade and assigned Swanson to teach kindergarten. She had not taught kindergarten in 30 years and expressed concern that, since the cancer treatments depleted her immune system, it would be dangerous for her to work with kindergarteners and the various illness they carried. The district, however, refused to change the assignment.

Swanson sued claiming the district failed to accommodate her disability. The district argued that it fulfilled its obligation to offer reasonable accommodation, even if it wasn’t Swanson’s preferred accommodation.

While the trial court granted the employer’s summary judgment motion, the appellate court reversed. It said that the district violated the Fair Employment and Housing Act by not giving Swanson preference for the 2nd grade position and not going far enough to find a workable accommodation. You can read the decision, which was reported in the BNA Labor and Employment Report (subscription), here: Swanson v Morongo (pdf).

Here are your takeaways:

  • Disabled employees get preference for open positions, as long as they’re qualified and it doesn’t violate an established seniority system. This is true even if a nondisabled candidate may be more qualified.
  • In the vast majority of cases, an employee will be viewed more sympathetically than an employer. If the employee is a cancer survivor, that advantage can be huge.
  • The obligation to reasonably accommodate a disabled employee is an ongoing one. If an accommodation proves ineffective, the employer needs to resume the interactive process to identify other possible accommodations. Getting qualified legal guidance on this process is a lot cheaper than getting sued.

I’ve complained before about the lack of guidance for employers dealing with employees who attribute their bad behavior to a disability. The Ninth Circuit’s August 15, 2014 decision in Weaving v. City of Hillsboro (pdf) only adds to the confusion.

The City of Hillsboro, Oregon fired Weaving from his job as a police sergeant after an investigation determined that Weaving “created and fostered a hostile work environment for his subordinates and peers.” [“Hostile work environment” being used in this context to describe bullying and intimidation not related to membership in a protected category.]  Weaving sued claiming that the City fired him because of a disability (ADHD). At trial, he recovered over $630,000 in damages. The City appealed and the appellate court reversed.

The court of appeal drew a distinction between being able to interact with others (which is a major life activity) and being able “to get along with others” (which presumably is not) . Distinguishing this case from precedents where the plaintiffs “were essentially housebound,” the majority concluded that Weaving was not substantially limited in his ability to interact with others. “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile work environment for their colleagues.”

A lengthy dissent argued that, even if the policy rationale made sense, the majority had failed to follow circuit precedent and had usurped the power of the jury to weigh the evidence. (Patrick Dorrian at Bloomberg BNA Employment Discrimination Report wrote a more detailed discussion of the case – with insight and analysis from yours truly – that you can access here (but you’ll need a subscription).)

Copyright: janmika / 123RF Stock Photo
Copyright: janmika / 123RF Stock Photo

The outcome probably would have been different under California law (which interprets “limits” and “life activities” more broadly).

Employers need to tread carefully in deciding whether or how to discipline employees who attribute their bad behavior to a disability. If judges can’t agree on what the law requires, we’re a long way from having a workable standard that employers can use to guide their decisions.

Last April, we reported on a case where an employer fired an employee for helping herself to a bag of potato chips without paying. The employee argued that she is diabetic and needed the chips because of low blood sugar. The EEOC, striking a blow for the rights of snack food thieves everywhere, filed suit on the employee’s behalf and, as we reported, the court denied the employer’s motion for summary judgment.

Now, as reported by our colleagues at the Employment Discrimination Report, the employer has settled for $180,000. The law provides scant guidance for employers on how to address misconduct that the offending employee attributes to a disability. And as this case shows, a misstep can be expensive. So employers facing these decisions have a choice. They can get legal guidance at the decision-making stage or they can just wing it and let the chips fall where they may.

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