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Employees with Lifelong Illnesses: Your Rights and Obligations in

Managing Absences and Providing Accommodations

Thursday, April 11, 2013 1:30 p.m. to 3:00 p.m. Eastern

12:30 p.m. to 2:00 p.m. Central 11:30 a.m. to 1:00 p.m. Mountain 10:30 a.m. to 12:00 p.m. Pacific

Presented by:

Patricia Eyres Eyres Law Group, LLP

This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI).The Program ID number will be emailed to the registered participant at the completion of the conference. For more information about certification or recertification, please visit the HRCI website at www.hrci.org.

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Employees with Lifelong Illnesses: Your Rights and Obligations in

Managing Absences and Providing Accommodations

Presented by:

Patricia Eyres Eyres Law Group, LLP

April 11, 2013

© 2013 Proactive Law Press 2

Leave Requests are Common with Chronic Conditions as an FMLA Serious Health Condition

• Hospital Care: Inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care.

• Incapacity: Inability to work or perform other regular daily activities due to the serious health condition, treatment, or recovery.

• Absence Plus Treatment: A period of incapacity of more than three consecutive calendars days which also involves treatment two or more times by a health care provider or treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

• Chronic conditions requiring treatment: Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider

• Multiple treatments for non-chronic conditions: any period of absence to receive multiple treatments (including period of recovery) by a health care provider either for restorative surgery or a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment.

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Examples of Chronic Conditions that are Likely FMLA Serious Health Conditions and ADAAA Disabilities

• Respiratory problems (such as asthma or COPD)• Inflammatory conditions (such as rheumatoid arthritis or fybromyalgia)• Chronic fatigue • Chronic pain• Cognitive or neurological deficits (often from long-term usage of prescribed medications)• Peripheral neuropathy (often side effect of medications taken long term for chronic conditions)• Immune deficiencies or susceptibility to infections• Digestive or gastric inflammation (such as colitis or acid reflux)• Diabetes or hypoglycemia• Incontinence or bladder conditions (including “shy bladder”)• Irritable bowel syndrome• Multiple chemical sensitivities to smells or common products• Sensitivities to noise, or distractions (can be physical or emotional)• Allergies to food products• Migraines • Hypertension (high blood pressure)• Anxiety disorders (such as agoraphobia)• Recurring or periodic depression• Panic attacks


What Information Can You Ask For and When Can You Use it?

• Stage 1 - prior to an offer of employment - ADA and FEHA both prohibit all disability-related inquiries and medical examinations, even if they are related to the job.

• Stage 2 - after an applicant is given a conditional job offer, but before s/he starts work - an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as itdoes so for all entering employees in the same job category.

• Stage 3 - after employment begins - an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.

• Employers must treat any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record.Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with FEHA or the ADA.

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Keeping Medical Information ConfidentialWith limited exceptions, employers must keep confidential any medical information it learns about an applicant or employee. Under the following circumstances, however, an employer may disclose relevant information:

– to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee's work restrictions;

– to first aid and safety personnel if an employee would need emergency treatment or require some other assistance at work;

– to individuals investigating compliance with the ADAAA;

– to individuals who are responsible for approving FMLA or other medical leaves; and

– as needed for workers' compensation or insurance purposes (for example, to process a claim, including a charge of discrimination or harassment).

Be very careful about information that comes to your employer that includes diagnosis, prognosis, detailed description of prescription medications, family medical history or other information the employer is not entitled to know.


Intermittent Leave is Most Commonwith Chronic or Lifetime Conditions

• The employer is required to grant intermittent or reduced schedule leave when it is medically necessary for employee’s own serious health condition (rest, treatment, recuperation)

• Does not necessarily require active treatment for leave to be medically necessary

• No undue hardship defense

• Management challenges when an employee with chronic condition needs FMLA for multiple consecutive years.

• Employer may require that absence be scheduled to minimize disruption (subject to approval of Health Care Professional).

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What the Certification Must Include• The date on which the serious health condition commenced;

• The probable duration of the condition; and

• A statement that the employee is unable to perform the essential job functions because of the serious health condition.

• If the leave is intermittent, the anticipated nature of the necessary absences and specific information on anticipated flare-ups or unpredictable absences.

• If the certification is for a family member, it must include a statement that the serious health condition warrants the participation of the employee in the care during a period of treatment or supervision.

• NOTE: the federal FMLA form includes a request for diagnosis. This is improper under California CFRA.


Managing Thorny Issues withIntermittent or Reduced Schedule Leaves

• Initial Proof of need for Reduced Schedule

– Employee need only establish eligibility on the first absence through medical certification– Can’t require employee to establish eligibility on each occasion of intermittent leave– Need for intermittent leave must be “medically necessary”

• Getting Clarification or Missing Information

– Generally can’t ask for additional information once a complete certification is submitted– Employer may seek clarification when initial certification that is ambiguous, confusing, or doesn’t

reasonably define duration of leave.

• Re-certifications

– “Blanket” recertification requirements may violate FMLA. – When the minimum period listed on the certification has expired;– The employee requests an extension of intermittent leave;– Circumstances described by the previous certification have changed significantly; or– The employer receives information that casts doubt on the continuing validity of the certification.

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Managing Employees with Consecutive Years of Intermittent Leave for Lifelong Illness

1. Obtain complete medical certifications for all serious health condition leaves. 2. Track eligibility from year to year, particularly the 1250 hours worked requirement.3. Provide the health provider with a job description or list of essential job functions.4. Insist that the medical certification be “complete.”5. Put the burden on employees to obtain missing information.

6. Even when you have information from the employee’s doctor that satisfies the definition of serious health condition, use the Certification form to obtain any additional information not furnished (such as probable duration or anticipated flare-ups/unpredictable absences).

7. Establish specific protocols for reporting intermittent leave absences. 8. Monitor or spot check the call-ins for erratic absences using intermittent leave.9. Discipline employees who fail to comply with procedural call-in requirements.


Why Bother Designating FMLA if Employee Has Sick Leave or Vacation Time Available?

• It’s the law. Employers have both federal and state obligation to provide FMLA/CFRA once there is a reasonable belief that leave is needed.

• FMLA is job-protected and benefit-protected. Protects employees from having absences counted against them.

• Consequences for employer’s failure to designate leave as FMLA qualifying = time never starts to run, giving employees additional 12-weeks of job-protection.

• Most risky: haphazard designations breeds inconsistencies among different employees, which leads to complaints of discrimination or retaliation.

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What Should the Written Designation Letter Include?

• Eligibility and Approval Status– Amount of leave available and applicable 12-month period– Type of leave approved (block, intermittent, reduced-schedule, transfer of position)– Certification requirements (and current status if already in progress)– Benefits status (benefits ordinarily paid by the employer will remain in effect)– Explanation of how leave runs (e.g., concurrent or consecutive with other leaves)

• Rights and Responsibilities while on Leave– Accrued sick leave and vacation time available– Conditions for using accrued vacation and sick leave (per employer policy)– Conditions for taking paid leave (per union contract, company policy or governing code)– Conditions for maintaining co-pays for medical or other benefits while on unpaid leave– Requirements for medical release and fitness for duty statement upon return to work– Notice requirements for return to work or to request extension of leave

• Reinstatement Rights Upon Return– Explanation of rights to same or similar job– Explanation of right to interactive process if released with restrictions


Return to WorkFitness-for Duty-Certifications

• The employer may have a uniformly applied policy requiring all similarly situated employees who take leave to obtain and present certification that s/he is able to return to work.

– The initial designation letter must advise the employee if a FFD certification will be required for return to work

– The employer must provide the health care provider with sufficient description of essential job functions to make the fitness for duty certification meaningful.

– Certification need only be a simple statement of an employee’s ability to return to work –with or without restrictions. If with restrictions, triggers duty under FEHA to engage in the interactive process and is not a basis to deny reinstatement outright.

• Employer may seek fitness-for-duty certification of the particular condition that caused the need for the FMLA leave.

– No additional information can be requested.– No second or third FFD certifications can be required

• No FFD certification is permitted when the employee takes intermittent leave, which is a frequent basis for leave involving regular treatments.

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Employer Cannot Force Employee to Use Leave Unnecessarily or PrematurelyWhen Reasonable Accommodations are Available

• If employee can work intermittently, employer can’t mandate that the leave be taken in a block of time (whether paid or unpaid)

• Can’t mandate that leave begin sooner than the employee’s health care provider specifies, nor extend beyond the provider’s release to return to work

• Can’t mandate that employee use FMLA leave for multiple consecutive days of sick leave unless it qualifies as ‘serious health condition’

• Can’t mandate that employee use FMLA leave as part of a ‘light duty’or ‘modified duty’ assignment under workers’ compensation program

• Can’t require use of a job-protected leave day if it would have been a non-duty day for the employee had s/he not been on leave (consider furlough day issues


FMLA ADAAA• Definition of serious health condition is broadly

defined (absence plus treatment or hospitalization)

• Eligibility requirements: 12 months of service and 1250 actual hours worked in the preceding 12 mths.

• Requires only that the employer determine eligibility requirements and Certification that the employee has a “serious health condition,” as defined

• Medial inquiry is strictly limited to whether employee meets definitions of “SHC,” and probable duration for block or intermittent leave

• Limits the decision to whether employee may take intermittent leave, and does not mandate other adjustments or modifications to work duties

• No undue hardship defense for eligible employees

• Separate claim for damages can be raised if employer interferes with the right to take leave or be reinstated upon release

• FMLA allows employer to require written “fitness for duty release” upon return from leave

• Leave is job-protected and benefit-protected, including reinstatement to the same or substantially similar job

• Definitions of disability is broad, including a variety of limitations of a major life activities

• No eligibility requirements involving length of service or hours worked

• Requires interactive process to evaluate whether the individual can perform essential job functions with or without reasonable accommodations

• Allows an employer to obtain information from the employee’s health care provider addressing “functional abilities, functional limitations and work restrictions.”

• Requires that employers provide reasonable accommodations, including modified duty or other adjustments to the work environment

• Allows “undue hardship/burden” defense

• No separate cause of action for “interference” with ADA rights, although retaliation for seeking a reasonable accommodation is a viable claim

• Severely restricts the circumstances under which employer can seek “fitness for duty” medical exam

• Reasonable accommodations not mandated for a specific time and no requirement of job-protected or benefit-protection status

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Mitigating Measures to Define Disability“A treatment, therapy, or device which eliminates or reduces the limitations of a disability”

• Positive effects of mitigating measures must be ignored in determining if an impairment is substantially limiting

– Example: a mitigating measure that eliminates or reduces symptoms or impact of an impairment cannot be used

– Instead, focus on whether the individual would be limited in performing a major life activitywithout the mitigating measure.

• Negative effects of a mitigating measure must be considered in determining if an individual meets the definition of disability

– Example: the side effects from use of medication for hypertension may be considered if they limit a major life activity such as sleeping, concentration, etc.

• But: employer can consider the value of mitigating measures when addressing reasonable accommodations


Three Part Definition of Disability

1. A physical, mental, cognitive or medical condition that actuallylimits the performance of one or more major life activities; or

– Are the employee’s major life activities substantially limited by the chronic condition?

2. A record of impairment (or of limitation) or record of treatment for a limitation; or

– Was his or her major life activities substantially limited in the past?

3. Being “regarded as” disabled (or as having a limitation).

– Has he or she been treated differently because of a diagnosis of a chronic condition even if that diagnosis did not affect his/her work?

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When Does an Individual Have a “Record of” Disability?

• When in the past, although not currently, he has an impairment that substantially limited his performing one or more major life activities.

• An individual can also meet the “record of” definition if he was once misclassified as having a substantially limiting impairment.

• All of the changes to the definition of an actual disability (including expanded list of major life activities, lower threshold for finding a substantial limitation, and episodic conditions) apply to evaluating whether an individual meets the “record of” definition of disability.

• Important: “record of” disability does not depend on whether an employer relied on a record (e.g., medical, vocational, WC, or other records that list the individual as having a disability) in making an employment decision. An employer’s knowledge of an individual’s past substantially limiting impairment relates to whether the employer engaged in discrimination, not to whether an individual is covered by the ADAAA.


“Regarded as” Disabled is a Realistic Risk when Managing Employees with Lifetime Medical Conditions

• Employees with diabetes – Rohr vs. Salt River (9th Circuit pre-2009 ADA)• Employees with hypertension • Concerns about chronic illness and “imminent safety threat”

• Defense is permissible if, after engaging in an interactive process, there is no reasonable accommodation that would allow the applicant or employee to perform the essential functions of the position in question in a manner that would not endanger his/her health or safety because the job imposes an imminent and substantial degree of risk.

• Future Risk: “No defense to assert that an individual with a disability has a condition or a disease with a future risk, so long as the condition or disease does not presently interfere with his or her ability to perform the job in a manner that will not endanger the individual with a disability or others. Factors:

– Duration of the risk;– Nature and severity of the potential harm– Likelihood that potential harm will occur; and– The imminence of the potential harm; and– Consideration of relevant evidence about an employee’s past work history.

• “The analysis of these factors should be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”

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Obtaining Medical Information to Support Direct and Imminent Threat Defense

• Job Related means tailored to assess the employee’s ability to carry out the essential functions of the job or to determine whether the employee poses a danger to himself or to others due to the disability

• Business Necessity regarding medical or psychological examinations means that the need for the disability inquiry or medical examination is vital to the business


Return to workdecision after injury or LOA

Recruitingor

Placement

To achieve consistent

policy enforcement

During performance

feedback orcounseling

During/afterharassment or retaliation investigation

Discipline orDischargeDecisions

Whenever employee states he/she is limited or needs

accommodation

Triggers for the Duty to Engage in Interactive Process

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Essential Information is Required for a Timely, Good Faith Return-to-Work Process

• Concrete statements of essential job functions that are reasonably up to date

• Specific, unambiguous medical restrictions that address the essential job functions

– Example: "Regarding work restrictions from a prophylactic standpoint or to avoid or prevent undue pain, and/or to avoid increased symptoms that could lead to a period of disability, and/or to avoid causing increased disability, and/or to prevent exacerbations that would increase the need for medical care, the patient should be limited to work between light and heavy.”


Critical Importance of Identifying What is…. or isn’t an Essential Job Function

• “Essential functions” means the fundamental job duties of the employment position the applicant or employee with a disability holds or desires. May be essential if:

– Job exists to perform the function

– Limited number of employees available to distribute the function

– Function is highly specialized , so the incumbent is hired for specific expertise to perform that function

• “Marginal functions” are those that if not performed, would not eliminate the need for the job or that could be readily performed by another employee or that could be performed in an alternate way

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Cast a Wide Net for People Knowledgeable About Job Tasks

• The law gives deference to the employer’s determination of essential job functions, BUT:

– Jurors are often skeptical of significant physical requirements when incumbents aren’t held to the same standards, and

– Appellate courts are often reluctant to overturn a jury verdict that is based, in whole or in part, on their view of witness and employer credibility

• Make sure you are using realistic data, to avoid claims of “pretext” or retaliation

• When Detailed JD/JA isn’t available, seek input from:

– Supervisor(s) and second level manager– Other incumbents in the job, currently or in the recent past– Related positions job descriptions for other facilities in the organization– Transition or temporary assignment descriptions can be helpful but not determinative– The employee in question – in step 5 Interaction


Determining Essential Job FunctionsCase-by-Case Analysis

Determination of the essential functions of a position must be done on a case-by-case basis so that it reflects the job as actually performed, not simply the components of a generic position description.

Evidence of whether a particular function is essential includes, but is not limited to, the following:

– The employer’s judgments as to which functions are essential. – Written job descriptions prepared before advertising or interviewing.– The amount of time spent on the job performing the function. – Consequences of not requiring incumbents to perform the function.– The terms of a collective bargaining agreement. – The work experiences of past incumbents in the job. – The current work experience of incumbents in similar jobs.

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Continuous Performance Management is Your Best Potential Defense to FEHA Claims

• Employees should not be genuinely surprised by candid, constructive performance feedback

• Good feedback may bring to light unknown barriers to performance

• Specific performance evaluations help with later analysis of skills, experience and potential for other jobs assignments as a reasonable accommodation

• Regular feedback avoids the “I didn’t know what was expected” syndrome

• Well crafted documentation, done contemporaneously with identifying performance issues, enhances defense that actions were job related and not retaliatory (if employee is injured or sues later).

Observation

Assessment

Development&

Consequences


Distinguish Between Poor Performanceand Disciplinary Action

• Performance

– Based on standards for acceptable performance

– Occurs with regular evaluations and feedback –requires communication

– Can support a termination without cause, as long as policies are consistently followed and non discriminatory

• Disciplinary Action

– Based on standards of conduct (workplace rules)

– Occurs when a rule is broken or misconduct occurs –requires investigation

– Can support a termination, based on misconduct that rises to cause or violation of specific rules in Employee Handbook or other communications

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Ambiguous or Imprecise Work Restrictions Impede your Process

– “Would benefit from a change in environment.”

– Physical Restrictions: “Regarding work restrictions from a prophylactic standpoint or to avoid or prevent undue pain, and/or to avoid increased symptoms that could lead to a period of temporary total disability, and/or to avoid causing increased disability, and/or to prevent exacerbations that would increase the need for medical care, the patient should be limited to work between light and heavy.”

– Psychiatric restrictions: “Should avoid contacts with the public or fellow workers or work environments that produce situations that would give rise to emotional stress. Should avoid working under close deadlines, dealing with contentious, unreasonable or otherwise exasperating members of the public, or performing work which requires precision and attention to detail under distracting conditions.”


Obtaining Information to Evaluate Reasonable Accommodations

An employer may ask an employee with a disability:

• For information, including reasonable documentation, explaining the need for a reasonable accommodation requested because of the functional limitations and/or work restriction;

• For medical information that is part of a voluntary wellness program;

• To justify the use of sick leave by providing a doctor's note or other explanation, as long as all employees who use sick leave are required to do the same and the information requested does not exceed what is necessary to verify that sick leave is being used appropriately; and

• For periodic updates on his condition if the employee has not provided an exact or fairly specific date of return, or where the employee requests leave in excess of that which the employer already has granted.

• In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care provider.

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Partial Checklist for Interactive DialoguePartial List of Questions -- Every Situation is Unique

Purpose: to conduct a timely, good faith dialogue to identify potential reasonable accommodations that will allow the employee to perform the essential functions of the job.

• What limitations is the employee experiencing?• How do these limitations affect job performance (job tasks and environment)• What essential functions can s/he perform unaided?• What essential functions can’t s/he perform unaided?• What types of modifications would work?• What types of equipment would work?• Is s/he familiar with or trained to use this equipment?• What training can s/he use in a different or modified job?• What devices or tools does s/he use off the job that would aid performance?• Ask for suggestions.• Consider a demonstration of performance with the modified task or equipment

• How does s/he handle the restrictions in major life activities outside of work (not to pry, but to determine what’s working well and can translate effectively into the workplace)?


Do’s and Taboo’s for Leaders In the Interactive Process

• Do be alert to spot situations that trigger the interactive process

• Do take seriously any reports or complaints made directly to you about an accommodation issue

• Do partner with your HR or risk management team if you have questions on how to handle an accommodation issue

• Do cooperate with all internal investigations and interactive process activities

• Don’t assume there are any jobs immune to a reasonable accommodation decision

• Don’t convey disrespect or intolerance for individuals with disabilities or accommodations

• Don’t delay or refuse to address a request for accommodation, or a complaint about how an accommodation is being managed

• Never, never retaliate or threaten participants in an interactive process

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Be Alert to Attitudes & Assumptions About Mental DisabilitiesThat Can be Explosive in the Courtroom

• Everyone is stressed from workloads and performance expectations. Playing the “stress card” is irresponsible or lazy.

• An employee with a mental disability is always a safety risk and must be kept out of the any safety sensitive job.

• We have no budget for accommodations or we only have budget to accommodate people who are physically disabled.

• Special Educational programs have significant compliance requirements with IEP deadlines and recordkeeping and so a teacher who cannot perform these duties can never be reasonably accommodated.

• Because accommodating a teacher with a modified work schedule is too disruptive to the structure and consistency for exceptional needs students, an undue hardship defense will apply.

• Since we can’t possibly remove all stressors from the work environment, we can deny accommodation and put the teacher or classroom aide on leave instead.


Potential Reasonable Accommodations Suitable for Employees with Lifetime or Chronic Conditions

• Modification of existing job duties (altering when and how an essential function is performed)• Job restructuring (including telecommuting, where feasible)• Part-time or modified work schedules • Flexible scheduling for start time, break periods• Modifying an employer attendance or punctuality policy• Shift changes from night to day or vice versa• Periodic or more frequent rest breaks away from workstation • Telecommuting or working from home • A private space for confidential physician-patient communications • Removal or adjustments to non-essential job functions • Adjusting policy enforcement on attendance or punctuality policies• More frequent breaks for bathroom or other needs• Reassignment to vacant position• Acquisition of equipment or assistive devices• Reducing or otherwise accommodating travel requirements during treatment• Allowing a scooter or other mobility device to reduce fatigue • Adjust parking locations, where available• Move work area to another location (for environmental distractions)• Adjustable ventilation, fans, heaters or other temperature controls• HEPA filters, fragrance limitations policies• Develop strategies to address susceptibility to infection• Allow longer or more frequent breaks for medication adjustments• Extended unpaid leave beyond expiration of available leave (last resort)

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Always Consider Leave as a Reasonable Accommodation But Only as a “Last Resort”

• If employee has serious condition, but is not eligible for FMLA, consider leave as a reasonable accommodation as part of your interactive process.

• If employee exhausts all available leave and is still unable to return to work – consider extended unpaid leave:

– Medical provider must be able to state a finite expected duration to allow employee to recover sufficiently to return to work with or w/out restrictions. If leave would be indefinite = no reasonable accommodation.

– If leave is finite, then the question in your interactive process is whether it is a reasonable accommodation to offer extended leave for that time period. Upon release, new (continuous) interactive process is required.

• Blanket or inflexible policies with maximum leave component are unlawful because they preclude the required “individualized analysis,” necessary under ADAAA.


Inflexible Policies are Unlawful When they Prevent an Individualized Decision

• “We don’t allow modified duty” or “our company doesn’t have any light duty assignments”

• Reduced hourly schedules are never approved as reasonable accommodations (United Airlines settled for $600K on 12-21-10)

• Maximum medical leave of 12 weeks (or any other inflexible time frame)

• Employees on modified duty are not eligible to work overtime hours (United Airlines $850,000)

• Employees injured in certain jobs are never accommodated by transfer to other vacant positions

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Attendance Policies and Reasonable Accommodation

• 7/6/11: Verizon Wireless pays $20 million to employees disciplined or fired for “no fault”attendance policies that precluded reasonable accommodation as an individualized decision. Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities.

• 6/23/11 EEOC vs. The Tideland Electric Membership alleges failure to accommodate a disabled employee with a chronic pain condition that substantially limits his neurological system. EEOC charges that 3 months after he was hired, Tideland learned that he was taking a legally prescribed narcotic medication in order to manage his chronic pain condition. Tideland terminated him without giving him a reasonable amount of time to change his medication regimen in order to keep his job.

• 8/2/11 The Pepsi Bottling Group, Inc. Pepsi paid $120,000 and will implement preventive measures for terminating a driver at its Hayward, Calif., facility, for “job abandonment and violation of the company attendance policy, even though he had followed proper procedure to inform his supervisor and the company that he could not finish his route due to his disability and needed to take medical leave.


Implementing the Decision to Offer a Reasonable Accommodation

• Build in protocols for evaluating the effectiveness of the accommodation in relevant time intervals.

• Maintain productive communications with supervisors about ongoing issues (positive and requiring intervention).

• Inform the employee that communication channels remain open on the effectiveness of the accommodation and any changes that may require a renewed interactive process.

• Document these activities.

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Once Accommodation is in Place Every Manager Must Implement… Every Single Day

A.M. v. Albertsons Supermarket

• A California court ruled that an employer's failure to accommodate an employee's disability on one single day, even though the employee had been appropriately accommodated for months before that, can still result in employer liability. The employer dropped the ball, the court said, by failing to notify all managers of the employee's accommodation needs.

• Following her thyroid cancer treatments, an Albertsons store checker needed constant drinking water throughout the day. As a result, she frequently needed to be relieved from her cash register station to take bathroom breaks. For months, A.M.'s managers had relieved her whenever needed.

• On a single day a temporary manager, was in charge of the store during A.M.'s shift, had not been notified of A.M.'s disability, or need for accommodation. When A.M. called to relieve her for a bathroom break, the manager told her to wait. A.M. was unable to refrain from urinating on herself while standing at her cash register. When Sampson did eventually come to relieve her, A.M. ran home humiliated and ashamed.

• A.M. sued alleging that Albertsons failed to accommodate her disability. Albertsons argued that a single occurrence could not constitute a violation of the accommodation laws. The jury, and the court of appeals, disagreed. The jury's award of $200,000 to A.M., mostly for emotional distress damages, was upheld by the court.


What if Changes Occur After the Decision to Grant a Reasonable Accommodation?Situations that Require a “Continuous” Process”

• Is the accommodation working as anticipated?• Has the disability/limitation changed? (e.g., improved or declined)• Are there any residual or new barriers to performance or access?• Is the supervisor managing the employee appropriately?• Is the supervisor managing other employees appropriately?• Have costs and/or disruption stabilized?• What issues may arise with the employee’s future career opportunities?• Is discipline or termination for reasons that may be disability-related?• Periodically evaluate the accommodation in progress. • Where necessary, re-initiate by beginning a new interactive process.

• Do co-workers need training or support?– Coping with the stress of a colleague who is seriously ill;– What to say, and what to avoid, when communicating on the job;– Prevention training for harassing or other behaviors, whether or not directed at co-workers

with a chronic condition or caring for loved ones who are terminally ill.

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More About The Critical Role of Front Line Supervisors and Managers

• Do respect the privacy of employee medical information which may come to your attention as part of this process

• Do understand the critical distinctions between leaves of absence and the requirements to reasonably accommodate

• Do cooperate on all interactive process activities

• Do instruct co-workers that they are expected to perform their jobs in a department where another individual is being reasonably accommodated

• Always conduct prompt, candid, constructive performance feedback to all employees

• Don’t disclose confidential information to any individual (including other managers) who don’t have a need to know

• Don’t assume the return from leave without restrictions extinguishes the continuing duty to consider reasonable accommodations

• Don’t make disparaging or inflammatory remarks about the process

• Don’t make disparaging remarks about individuals who are being accommodated or were accommodated in the past; or about work restrictions in general

• Never be paralyzed into delaying or declining to evaluate performance of individuals working with restrictions


What is GINA?Genetic Information Nondiscrimination Act

• Title I of GINA addresses the use of genetic information in health insurance.

• Title II prohibits the use of genetic information in employment, restricts employers from:

– Discriminating, harassing or retaliating against an applicant oremployee;

– Requesting, requiring, or purchasing genetic information, and

– Disclosing genetic information without appropriate authorization.

• California FEHA (5+ employees) has its own, more broadly written law barring employers from discriminating based on genetic conditions and from testing for genetic characteristics. GINA is more specific about what employers can and can't do with genetic information.

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Very Broad Definitions

• Family members: specifies individuals from the “first to the fourth degree,” based on a finding that “the degree of relationship reflects the average proportion of genes in common between two individuals.” GINA covers “children, siblings, and parents (first degree), grandparents, grandchildren, uncles, aunts, nephews, nieces, and half-siblings (second degree), great-grandparents, great grandchildren, great uncles, great aunts, and first cousins (third degree), and great-great grandparents and first cousins once removed (the children of a first cousin) (fourth degree)”

• Medical history: includes information concerning any disease or disorder that any of these individuals has suffered — whether or not hereditary — as long as the disease or disorder has been diagnosed or the symptoms have sufficiently manifested themselves that the disease or disorder could reasonably be diagnosed.

• Genetic tests: Regulations include examples such as test for genetic variant for Huntington’s disease, test to determine if someone has the BRCA1 or BRCA2 variant for predisposition to breast cancer, or amniocentesis to determine the presence of genetic abnormalities in a fetus during pregnancy. Also includes carrier screening for adults to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy.


Why it is Critical to Notify Medical ProvidersIn the Words of the EEOC

“If a covered entity (employer) acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertentunless the [employer] directs the individual and/or health care provider from whom it requested medical information (in writing or verbally) not to collect or provide genetic information.

“failure to give such notice … will not prevent [an employer] from establishing that a particular receipt of genetic information was inadvertent if its request for medical information is “not likely to result in … obtaining genetic information (for example, where an overly broad response is received to a tailored request for medical information.)”

NOTE: EEOC provides a “Model Warning” to use on all requests for medical certifications for leave or reasonable accommodation processes – and it includes family medical history.

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Social Media = A High Risk Area• GINA allows acquisition of genetic information that is publicly and commercially

available. But, EEOC expressly states that this does not apply to the acquisition of genetic information from “social networking sites and online media sources which require permission to access from a specific individual.”

• Result: a manager who reads about an employee’s family medical history on the employee’s Facebook page will not be able to defend that the information was “commercially and publicly available,” if the employee has set the privacy settings to ‘friends only.” This is true even if the employee has previously accepted a “friend request” from the manager.

– Example: “I’m walking in the Race for the Cure in honor of my mom and sister who had breast cancer.”

– Example: “I’m going for a colonoscopy. Wish my dad had gone in time to catch it early.”

– Might be inadvertent if it was a single posting after the manager was ‘friended’

– But ongoing conversation on the employee’s Facebook wall about family history could establish that the manager “actively listened” because ongoing posts were anticipated


A Word About this Material

This handout accompanies a presentation for managers, front-line supervisors. While the information is accurate and up to date, it is not intended to, and does not constitute, legal advice on a specific matter.

For specific legal advice on a specific case, whether in any current matter or merely anticipated, contact a qualified attorney.

You can reach the speaker with questions or requests for information:

480-607-5847

[email protected]

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Disclaimers

*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

Patricia Eyres is the managing partner of Eyres Law Group, LLP, a specialized law practice focusing exclusively on helping employers in the areas of labor, employment

and education law. Her clients range from Fortune 500 companies to small businesses, school districts and public agencies. In addition to guiding employers through the maze of risks associated with workplace discrimination, harassment and retaliation claims, she is an expert on return-to-work, reasonable accommodation and leave of absence compliance.

Patricia Eyres

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