How Los Angeles Employers should engage in the interactive process with employees.
COVID 19 has changed the dynamic of the workplace. The definition of disability is now expanded to include COVID 19 symptoms and diagnosis. Los Angeles employers face a new reality in adjusting the workspaces of its employees to prevent the spread of COVID 19. Employers are familiar with California’s pattern of passing new laws with little education or preparation for employers to comply. September 2020 brought at least six new laws that drastically increase the cost for small business owners to operate. See my article here briefly summarizing these new laws.
I find it very disheartening how easy it is for employee attorneys to sue employers over ignorance of the law. Disability discrimination lawsuits have always been common. COVID 19 will now increase the number of these cases. According to the Department of Fair Employment and Housing (“DFEH”) a majority of their cases are based on employees alleging employers mishandled their actual or perceived disability. See the DFEH 2019 Annual Report which shows the percentage of employee cases by allegation. This will only increase because employee attorneys are advantageous and savvy.
Disability discrimination and retaliation cases in California are very serious because they carry a one-sided burden of awarding prevailing employees their attorney’s fee. A prevailing employer is not automatically awarded attorney’s fees. An employee’s attorney will take a case on contingency, meaning an employee does not have to pay an attorney out of pocket. The employee’s attorney and the employee split any amount the employee gets from the employer. Employee attorneys do this because they know employment cases settle a majority of the time and money is almost guaranteed.
The truth- if an employee won at trial the attorney’s fees would be in the hundreds of thousands of dollars. It is often the best business decision of the employer to settle. But settling does not mean an employer does not need to put up a strong defense. In fact, I have found employers, without an attorney, settle too early and pay too much money. That approach exposes employers to repeat litigation by other employees. It encourages other employees to sue their employer because they think it is easy money.
This post is not to scare employers. Very much the opposite, I am writing this post to educate employers on their responsibilities. No attorney can guarantee an employer will not be sued. But an employer can be educated and follow proper steps to have a strong defense in the unfortunate event of a lawsuit. In this post I will discuss the basics and leave some tips on what an employer should do with an employee who has an actual or perceived disability.
How is “disability” defined in California?
Disability is defined by federal law and state law. California’s definition of disability is broader. It is important for employers to know both definitions because both laws do apply. I will discuss the laws and the difference between both laws below.
Federal Law- Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) became law in 1990. The purpose of the law is to protect individuals with disabilities from being discriminated against based on being disabled. The ADA uses specific definitions which I will state below. A copy of the ADA law can be found here. The ADA definitions related to disability are as follows:
“The term ‘disability’ means, with respect to an individual
“(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.” ADA § 12102, et seq.
Major Life Activities
“[M]ajor life activities include, but are not limited to,
· caring for oneself,
· performing manual tasks,
· communicating, and
“[A] major life activity also includes the operation of a major bodily function, including but not limited to,
· functions of the immune system,
· normal cell growth,
· endocrine, and
· reproductive functions.” Id.
Regarded as Having such an Impairment
An individual meets this requirement “if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id.
The ADA is broad and intended to be more inclusive than less. An employee does not always have to directly tell an employer they are disabled. If an employee appears to be or can be thought of as disabled, then the employee may meet the definition.
California Law- Fair Employment and Housing Act
California consolidated several laws and created the Fair Employment and Housing Act (“FEHA”) in 1980. Since then it has been amended several times to be more inclusive. The DFEH enforces the FEHA law. If an employee believes their employer has harassed, discriminated, or retaliated against them, the employee must file a claim with the DFEH before a lawsuit can be filed. FEHA’s policy against discrimination can be found here.
Under FEHA, it is unlawful for an employer to refuse to hire, train or retain an employee because of a physical disability, mental disability, medical condition or genetic information. An employer also cannot discriminate against such an employee with compensation, terms, conditions or privileges of employment. The FEHA definitions are as follows:
“ ‘Physical disability’ includes, but is not limited to, all of the following:
Having any physiological
cosmetic disfigurement, or
that does both of the following:
(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B) Limits a major life activity.” Gov’t Code § 12926, et seq.
“Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” Id.
“ ‘Genetic information’ means, with respect to any individual, information about any of the following:
(A) The individual’s genetic tests.
(B) The genetic tests of family members of the individual.
(C) The manifestation of a disease or disorder in family members of the individual.” Id.
Limits a Major Life Activity
“ ‘Limits’ shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.”
“ ‘Major life activities’ shall be broadly construed” and includes
Physical, mental, and social activities and working.
Any other health impairment that requires special education or related services.
Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment is known to the employer.
Being regarded or treated by the employer as having, or having had, any physical condition that makes achievement of a major life activity difficult.
What is the difference between ADA and FEHA?
Under ADA a major life activity needs to be substantially limited. Under FEHA a major life activity needs to be difficult. The FEHA standard is much lower and broader. This means it is easier to find an employee has a disability under the California law.
What is the Interactive Process?
“Employers must engage in a good faith interactive process with employees and candidates who have disabilities to determine the appropriate reasonable accommodations that might overcome the employee’s or applicant’s job limitations” Gov’t Code § 12940(n).
A timely, good faith interactive process is an open dialogue with an employee to find a reasonable accommodation so that the employee may keep their job. The interactive process should be done predominately through writing, such as letters or emails to the employee. This way the employer’s reasonings during the interactive process are recorded. Once an employee’s disability is established and the employee requests accommodation an employer will do the following:
Verbally discuss the disability with the employee. This should be done in private.
Request that the employee provide certification of a disability status and work restrictions.
Research the disability and what effects it has on the employee.
Determine options to accommodate the employee. These options should not create an undue hardship on the business and should not pose direct threats to other employees.
Communicate in writing, such as letter or email, to the employee the reasonable accommodations, if any.
Conduct an in-person meeting with employee to discuss the reasonable accommodations, if any.
A good faith interactive process requires an open dialogue with an employee. Often times employers rush this process and that is a mistake. Employers need to give themselves enough time to research and think about reasonable accommodations. An employer must engage in the interactive process even if the process itself does not result in a reasonable accommodation being possible.
When does the Interactive Process become necessary?
Once an employee’s disability is established then the employer must provide a reasonable accommodation, unless that accommodation would cause an undue hardship on the business. The disability is established once an employee puts an employer on notice or the employer perceives the employee has a disability. Immediately, the employer needs to start a good faith, interactive process as discussed in this article.
Types of reasonable accommodation?
An employer needs to think outside of the box. Reasonable accommodations can come in many forms. Here are a few examples of common reasonable accommodations:
Changing Job Duties- An employee still needs to perform the essential job functions of their position. An employer should list the specific job duties of the employee’s position. Then the employer should look at what job duties are necessary. From there the employer should determine which job duties would be difficult for the employee to perform because of the employee’s disability. This may involve eliminating certain aspects of job duties, reassigning job duties, giving job duties to other employees, or changing procedures to accomplish job duties.
Changing Work Schedules- Changing an employee’s schedule can be one of the easier accommodations. An employer can consider changing an employee’s start or end times. Another option would be to reduce the employee’s hours if this would not cause an undue hardship on operations. The reduction in hours could be temporary or permanent based on the employee’s disability. Also, California has a program for an Alternative Work Schedules to allow employees more flexible leave options.
Restructuring the Workspace- COVID 19 has taught us that the workspace can be modified. Changing a workspace around can be a potentially easy accommodation. Such changes may include purchasing new desks, shelves, storage, moving current furniture around, or relocating an employee’s workspace closer to the bathroom or other areas the employee uses frequently. Other equipment specific to the performance of the job can also be purchased. With technology many things are possible.
Reassignment- This option is usually for longer term employees. If the employee’s disability developed during their employment, then the employer needs to make an effort to preserve the employment. Reassignment is appropriate when there are no other reasonable accommodations for the employee’s current position.
Working From Home- I caution employers using this option. See my article here about the hidden costs of a permanent work from home program. Working from home requires an employer to compensate an employee for reasonable business expenditures. This option should be considered but may cause an undue hardship on an employer if the employee’s presence in the workplace is necessary.
What is the undue hardship defense?
“ ‘Undue hardship’ means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1) The nature and cost of the accommodation needed.
(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.” Gov’t Code § 12926(u).
Undue hardship can be financial based, but that is not the strongest argument for an employer. The most critical undue hardship factor is how one employee’s accommodation would affect other employees. If a reasonable accommodation would force other employees to work longer hours or put a strain on operations it may not be feasible.
How to document the Interactive Process?
There is no specific procedure for documenting the interactive process, but here are some steps that may help.
Once an employee’s disability is known an employer should make a note to the employee’s file. You can find a template “Note to File” here. This note should remain confidential along with the rest of the employee’s personnel file. In this note an employer should document the type of disability, comments the employee made about the disability, any foreseeable restrictions the disability has on job duties and anything verbally discussed with the employee. Early verbal conversations with employees often results in the reasonable accommodation being determined.
Send the employee a letter or email requesting certification of the employee’s disability with a list of work restrictions. Keep any responding documents in the employees file.
Document the research you conducted about the disability. Keep note of websites and written materials you read about the disability.
If not already done so, determine if the reasonable accommodations discussed are operationally feasible. Draft a letter or email to an employee determining if the reasonable accommodations discussed are approved or propose other reasonable accommodations.
Have a meeting with the employee to discuss the reasonable accommodations. Take notes during this meeting. Usually during this meeting final reasonable accommodations are determined. Then draft a letter or email to the employee summarizing the in-person meeting and determinations.
Keep track of the implementation. Keep notes on how the reasonable accommodations are working and their effects on the operations.
Sometimes reasonable accommodations need to be changed over time. When that is the case, repeat the process above documenting communications, research and determinations for the modified reasonable accommodations, if any.
How to conclude the Interactive Process?
A letter or email to the employee outlining the reasonable accommodations is a good way to document the conclusion. Then implement the accommodations. Be prepared for the employee to come back with further requests or changes to the reasonable accommodations. Always document the process so that you do your part to engage.
Why employers need an attorney before starting the interactive process?
Every employee disability case is unique and must be handled on a case by case basis. Los Angeles employers are held to some of the most stringent laws. Los Angeles has its own sick leave laws. Further, Los Angeles has a large population of employee friendly lawyers encouraging employees to sue their employers. Employment disability laws have various layers from the required good faith interactive process to very broad paid and unpaid leave policies. Read my post here on the various leaves for Los Angeles employers to know.
Employers are overwhelmed enough in dealing with daily operations it is hard for them to keep track. When an employee is determined to have a disability call an employment attorney, like myself. Communications with your attorney are privileged, so you can have an honest conversation with an attorney before presenting options to the employee. If you feel an accommodation is not possible you will want to talk to a lawyer about terminating the employee before you do so. Remember you don’t need to have an answer right away. An attorney can shed some light from a litigation standpoint to avoid potential lawsuits.
What to do if an employee is suing you about their disability?
If you are being sued by an employee because of their disability you should immediately call an attorney, like myself, to discuss the facts of the case and defense strategies. These cases do take time but usually settle at the end. You will want to discuss with me the specific situation so we can come up with a practical approach to resolution and future prevention.
If you are unsure how to approach the interactive process or reasonable accommodations call (818) 306-0686 or email me firstname.lastname@example.org to set up a consultation. Many of my clients have had weak defenses because they did not understand the requirements and did not ask an attorney for help.
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The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.