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So many times an employer gets in trouble for following logic instead of the law.  Quite often what is logical just isn’t legal, and that can be tricky for many managers and HR professionals.  It trips them up.  That’s why one of my favorite topics to speak about is Employment Law Bloopers and Lessons Learned.

If you are interested in this topic, and like to learn employment law from stories (instead of detailed powerpoints with dense legal citations), then you have two chances to come hear me speak.  First, on August 28th at the California HR Conference in Long Beach, and second on August 29th at the FIRMA (Foodservice Industry Risk Management Association) Conference in Fullerton.

65071107 – woman hand writing what have you learned? on blank transparent board with a marker isolated over water background. business concept. stock photo

One of the bloopers I will be talking about is “Ignoring Warning Signs from Top Performers.”  Those who read my blog posts know this is an issue close to my heart.  And it is all over the news regardless of industry, from tech, to media, to entertainment, to universities and more.  Other bloopers involve skipping steps when dealing with the interactive process and reasonable accommodation, retaliation, and the mistakes people make with emails and social media (like those texts we see in litigation from managers to employees sent in the wee hours of the morning on issues unrelated to work … you get the idea).

Come be entertained on August 28th or 29th and learn a few things too!

Have you ever seen one of those workplace training videos and thought “I could do that?”  Well I did that!

I am excited to be featured in a training video to assist workplace supervisors in recognizing and responding to common legal issues that arise in the day-to-day management of workers.  The video was developed and produced by Kantola Productions and is titled “Employment Laws: What Supervisors Need To Know.”

The video focuses on the decision-making process and provides helpful strategies for ensuring compliance with national workplace laws and regulations, covering topics such as:

  • Accommodation requests
  • Safety concerns
  • Social media and related privacy expectations
  • Wage and hour compliance challenges

The DVD retails for $289 and is available to Fox Rothschild clients and their contacts at a 20% discount.  Please enter Fox20 in the “catalog code” box when filling out the online purchase form.

Take a look at a clip from the video below.  Enjoy!

Preview:

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.

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.