Interactive Process

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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

 

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.

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.

 

July 26, 2015 will mark 25 years since George H.W. Bush signed the Americans With Disabilities Act. Has the ADA behaved like many 25 year olds by moving to Brooklyn and refusing to compromise its creativity and individuality to find a job that it’s sure it will hate? Is it sprawled out in front of the TV, drinking your beer and scowling when you gently question its grooming choices? No. It’s been working since its infancy to help people with disabilities participate meaningfully in the workforce and society, in general.

President Bush acknowledged at the signing ceremony the concern “that the ADA may be too vague or too costly, or may lead endlessly to litigation.” The concern was justified. Last year, 28.6% of all charges filed with the EEOC included claims of disability discrimination. Employers wanting to avoid becoming part of that statistic need to understand the following:

Copyright: vladvm / 123RF Stock Photo
Copyright: vladvm / 123RF Stock Photo
  • The breadth of impairments that qualify as disabilities. The Act begins with a finding that “some 43,000,000 Americans have one or more physical or mental disabilities.” Between the aging of the population and amendments that expanded the definition of disability, that number is presumably higher now.
  • The extent of employers’ obligations to accommodate disabled workers. This is not like other discrimination laws that require you to treat everyone the same. Employers are expected to accept certain expenses, inefficiencies, and disruptions to enable disabled individuals to work.
  • The interactive process, i.e. the steps employers are required to go through to identify possible accommodations. You can access a presentation I did on that topic here.

When in doubt, get qualified legal advice. It’s much cheaper than waiting to get sued.

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.