Transcript Managing Recurring/Extended Disability Leaves & Deciding

THE NEW CALIFORNIA DISABILITY REGULATIONS
WHAT DO THEY TEACH US ABOUT
ACCOMMODATING FACULTY?
Presented by
Leslie Van Houten, Senior Counsel
Office of the General Counsel
April 29, 2014
Academic Business Officers Group
WHO IS COVERED BY THE DISABILITY LAWS?
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WHO IS PROTECTED BY THE DISABILITY LAWS?
Both applicants for employment and employees who
are “qualified individuals” with a disability. That
means they:
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have the requisite skill, experience, education, and other
job-related requirements for the position and
can perform the essential functions of the position with or
without reasonable accommodation.
All faculty members are protected regardless of their
status.
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WHAT IS A DISABILITY?
Disability is broadly defined in favor of expansive
coverage.
The determination of whether the individual meets
the definition of disability should not require
extensive analysis.
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WHAT IS A DISABILITY?
A physical or mental condition which limits a major
life activity. (Note, federal law requires a substantial
limitation to a major life activity.)
A medical condition (cancer or genetic characteristic)
– no requirement that it limits a major life activity.
Medical Conditions will need to be accommodated
even if they do not limit a major life activity.
Persons regarded as presently disabled or who may
become disabled in the future.
Persons with a history of a disability.
People who associate with persons who are disabled
or perceived to be disabled.
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WHAT IS A DISABILITY?
Mental Disability
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Emotional or mental illness
Intellectual or cognitive disability
Organic brain syndrome
Specific learning disabilities
Autism spectrum disorders
Schizophrenia
Chronic or episodic conditions such as clinical depression,
bipolar disorder, PTSD, and OCD
WHAT IS A DISABILITY?
Physical Disability
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Includes anatomical loss, cosmetic disfigurement, physiological
disease, disorder or condition that does both of the following:
 Affects one or more of the following bodily systems neurological; immunological; musculoskeletal; special
sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genitourinary;
hemic and lymphatic; circulatory; skin; and endocrine; and
 Limits a “major life activity “ (defined on next slide).
Examples of physical disabilities: deafness, blindness, partially
or completely missing limbs, mobility impairments requiring
the use of a wheelchair, cerebral palsy, and chronic or episodic
conditions such as HIV/AIDS, hepatitis, epilepsy, seizure
disorder, diabetes, multiple sclerosis and heart disease.
WHAT IS A DISABILITY?
For purposes of disability, a “major life activity” is
construed broadly and includes physical, mental, and
social activities, especially those life activities that
affect employability or otherwise present a barrier to
employment and advancement.
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Includes caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing,
sitting, reaching, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking,
communicating, interacting with others, and working;
Includes the operation of major bodily functions.
WHAT IS A DISABILITY?
When evaluating whether someone is disabled, the effect
of “mitigating measures” (other than ordinary eyeglasses
or contact lenses) are not considered.
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Mitigating measures include treatment, therapy, or devices
that eliminate or reduce the limitation(s) of a disability.
Special Education disability
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Any other recognized health impairment or mental or
psychological disorder that requires or has required in the past
special education or related services.
May include a specific learning disability manifested by
significant difficulties in the acquisition and use of listening,
speaking, reading, writing, reasoning, or mathematical
abilities.
WHAT IS A DISABILITY?
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A Record or History of Disability
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Previously having – or being misclassified as having – a record
or history of a mental or physical disability or a special
education health impairment of which the employer is aware.
Perceived Disability
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Being regarded or treated by the employer as having – or
having had – any mental or physical condition or adverse
genetic information that makes achievement of a major life
activity difficult; or
Being subjected to an employment action based on an actual
or perceived disability – whether or not that actual or
perceived disability limits, or is perceived to limit, a major life
activity.
WHAT IS NOT A DISABILITY?
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Gambling, Kleptomania, Pyromania
Psychoactive substance abuse disorders resulting from
the current unlawful use of controlled substances or
other drugs.
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But note: The effects of past use of such substances would be
covered.
Sexual behavior disorders (pedophilia, exhibitionism,
voyeurism).
Mild conditions that do not limit a major life activity, as
determined on a case by case basis – e.g., common cold;
seasonal or common influenza; minor cuts, sprains,
muscle aches, soreness, bruises, or abrasions; nonmigraine headaches; and minor GI disorders.
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WHAT DOES THE LAW REQUIRE?
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An employer must provide reasonable
accommodations to qualified individuals with a
disability.
An employer must engage in the interactive process
when that obligation is triggered.
An employer cannot discriminate against an applicant
or faculty member because of a disability – or
because of a record (or history) of a disability or
because of a perceived disability.
An employer cannot retaliate against a faculty
member or applicant who has exercised his rights
under the disability laws.
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WHO IS A QUALIFIED INDIVIDUAL WITH A
DISABILITY?
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“Qualified Individual”
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An applicant or faculty member who has the requisite
skill, experience, education, and other job-related
requirements of the job the individual holds or desires,
and who, with or without reasonable accommodation,
can perform the essential functions of such position.
(Green v. State of California (2007) 42 Cal.4th 254, 260.)
ABOUT THE INTERACTIVE PROCESS
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WHAT IS THE INTERACTIVE PROCESS (IP)?
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An ongoing dialogue between the employer and faculty
member, conducted in good faith, regarding how the
faculty member is limited in his ability to perform the
essential functions of his position and what, if any,
reasonable accommodations could enable him to
perform those essential functions.
If no reasonable accommodations could enable a
current faculty member to perform the essential
functions of the current position, the IP then includes
an exploration of whether there are alternative
positions that are open for which the faculty member is
qualified.
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WHAT STARTS THE INTERACTIVE PROCESS?
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When Faculty Member requests a reasonable
accommodation
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Important: Faculty member does not have to use any “magic
words.”
When Employer…
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Knows about the disability;
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This includes knowledge of a workers’ comp injury or illness.
Knows or has reason to know that the faculty member is
experiencing workplace difficulties because of a disability;
Knows or has reason to know that the disability prevents the
faculty member from requesting accommodations;
Learns or becomes aware of the need for accommodation
from a third party; or
Learns that the faculty member needs more leave after having
exhausted FML or other leaves entitlement under policies or
collective bargaining agreements.
WHO SHOULD BE INVOLVED IN THE INTERACTIVE
PROCESS?
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For the Faculty:
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Faculty member
Faculty member’s representative, if applicable
For UC:
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Trained person leads the process – could be HR, LR,
APD, Disability Manager, Voc Rehab Officer
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In consultation with Campus Counsel or OGC, when
necessary
Supervisor
THE INTERACTIVE PROCESS (IP)
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Three Basic Steps to the IP:
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Step 1: Identify the essential functions of the job
Step 2: Determine the faculty member’s limitations
Step 3: Explore whether faculty member’s
limitations can be reasonably
accommodated
STEP 1: IDENTIFY ESSENTIAL FUNCTIONS
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Essential Job Function means
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The fundamental job duties of the employment
position the applicant or faculty member with a
disability holds or desires.
What functions are essential functions (as opposed
to marginal functions)?
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A function may be essential because the reason the
position exists is to perform that function.
A function may be essential because there is a limited
number of faculty available among whom the
performance of that function can be distributed.
The function may be highly specialized, so that the
incumbent in the position is hired for his/her expertise
or ability to perform that particular function.
STEP 1: IDENTIFY ESSENTIAL FUNCTIONS
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What can serve as evidence that a particular
function is essential?
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Accurate and current job description
Employer’s judgment (supervisor)
The amount of time spent performing that function
The legitimate business consequences of not requiring the
incumbent to perform that function
Job descriptions or job functions in a CBA
The work experience of past incumbents in the job
The current work experience of incumbents in similar jobs
Reference to the importance of the performance of the job
function in prior performance reviews
STEP 2: FACULTY MEMBER’S LIMITATIONS
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Determine the faculty member’s limitations
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Interview the faculty member
If the disability or need for accommodation is not
obvious, obtain reasonable medical information
from:
Treating Health Care Provider
 WC Medical Reports
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STEP 2: FACULTY MEMBER’S LIMITATIONS
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What information are we entitled to about the faculty
member’s limitations?
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When the disability or need for reasonable accommodation is
not obvious, the University may ask for reasonable medical
documentation.
We cannot require the diagnosis or make inquiries about the
underlying medical condition.
“Where necessary to advance the interactive process,
reasonable medical documentation may include a description
of physical or mental limitations that affect a major life activity
that must be met to accommodate the [faculty member].”
STEP 2: FACULTY MEMBER’S
LIMITATIONS/DOCUMENTATIONS
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Required medical information. Where the existence of a disability and/or the need
for reasonable accommodation is not obvious, an employer or other covered entity
may require an applicant or faculty member to obtain and provide reasonable
medical documentation from a health care provider that sets forth the following
information:
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(A) The name and credentials of the health care provider which establishes that the
individual falls within the definition of “health care provider” under section 7293.6,
subdivision (i), of these regulations.
(B) That the faculty member or applicant has a physical or mental condition that limits a
major life activity or a medical condition, and a description of why the faculty member or
applicant needs a reasonable accommodation to have an equal opportunity:
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to participate in the application process and to be considered for the job, or
to perform the faculty member’s job duties, or
to enjoy equal benefits and privileges of employment compared to nondisabled faculty members.
The employer or other covered entity shall not ask for unrelated documentation, including
in most circumstances, an applicant’s or faculty member’s complete medical records,
because those records may contain information unrelated to the need for
accommodation.
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For medical accommodations lasting beyond one year, the University may ask for
medical documentation supporting the need for continued reasonable
accommodation every year.
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INSUFFICIENT MEDICAL DOCUMENTATION
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Documentation is insufficient if it does not:
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Specify the existence of a covered disability
Explain the need for reasonable accommodation
“Where relevant,” provide the functional limitations
If the health care provider does not have expertise to
confirm the faculty member’s disability or need for
reasonable accommodation
Where other objective factors indicate that the
information provided is not credible or is fraudulent
NOTE: If the medical information is insufficient, the employer
must still provide the accommodation supported by medical
information it has as of that date.
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STEP 2: FACULTY MEMBER’S LIMITATIONS/MEDICAL
RECORDS
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Keep medical records:
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Confidential
In a secure location
Separate from faculty member’s other personnel
records
Best Practice: You can share information about the
faculty member’s limitations with
the faculty member’s supervisor but
not other medical information.
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STEP 3: REASONABLE ACCOMMODATIONS
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Explore whether faculty member’s limitations can
be reasonably accommodated.
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Consider any suggestions made by the faculty member
or her treating physician.
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Although we don’t typically ask the treating physician to
suggest possible accommodations, they often do and these
new regulations invite them to do so.
Investigate possible accommodations.
UC may choose to implement any accommodation that
would be effective for both the University and faculty
member – even if it is not the accommodation
preferred by the faculty member.
THE INTERACTIVE PROCESS (IP)
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The IP should not end until one of the
following occurs:
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The faculty member has been reasonably
accommodated.
It has been determined that no reasonable
accommodation exists and there is no alternative
position for which the faculty member is qualified
that is currently open or expected to open up.
The faculty member ends the IP by failing or
refusing to participate in the IP in good faith.
REASONABLE ACCOMMODATIONS
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DETERMINING APPROPRIATE ACCOMMODATION(S)
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An employer is only obligated to implement an
accommodation that is both
 Reasonable and
 Effective
An employer is not obligated to implement a
reasonable accommodation that would create an
“undue hardship.” However, the standard for undue
hardship is very high.
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EXAMPLES OF REASONABLE ACCOMMODATION
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Making existing facilities used by applicants and
faculty readily accessible to and usable by people
with disabilities. For example:
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Accessible break rooms, restrooms, training rooms
Reserved parking places
Acquiring or modifying furniture, equipment or devices
Transferring a faculty member to a more accessible
worksite
Providing assistive aids and services, such as qualified
interpreters
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EXAMPLES OF REASONABLE ACCOMMODATION
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Job restructuring, which may include reallocation or
redistribution of non-essential job functions
Permitting an alteration of when and/or how an
essential function is performed
Providing an adjustment or modification of
examinations, training materials, or policies
Modifying supervisory methods (e.g., dividing
complex tasks into smaller parts)
Providing additional training
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EXAMPLES OF REASONABLE ACCOMMODATION
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Permitting a faculty member to work from home
(telecommuting)
Allowing faculty member to bring assistive animals to the
worksite
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Service animals
Support animals – animals that provide emotional or other
support
Providing a part-time or modified work schedule
Providing paid or unpaid leave for treatment and recovery
Reassignment to a vacant position
Note: This list is not exhaustive.
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WHAT IS NOT A REASONABLE ACCOMMODATION
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Eliminating an essential job function
Creating a new position for the faculty member
Making a light duty position permanent
An accommodation that would endanger the health
or safety of the faculty member – or others
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Must do the IP first – can’t just assume.
There must be an “imminent and substantial degree of
risk” to the faculty member or others. Failure to
accommodate based on future risk is unlawful.
Decision must be based on current medical knowledge
and/or best available objective evidence.
Indefinite leave – but more on this below
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CONSIDERATIONS WHEN LEAVE IS PROVIDED AS A
REASONABLE ACCOMMODATION
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A faculty member cannot be penalized for work
missed during a leave taken as a reasonable
accommodation.
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Faculty member can’t be expected to meet
performance goals or production standards that
have not been adjusted to reflect the protected
absence.
Likewise, faculty member can’t be penalized for
not meeting attendance standards due to such a
leave.
CONSIDERATIONS WHEN LEAVE IS PROVIDED AS A
REASONABLE ACCOMMODATION
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According to the EEOC Guidance:
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In assessing undue hardship, the period of FMLprotected leave may be taken into consideration.
FEHA regulations provide that a leave is a
reasonable accommodation when it is “likely to
be effective in allowing the faculty member to
return to work at the end of the leave, with or
without reasonable accommodation, and does
not create an undue hardship for the
employer.”
An indefinite leave is not considered a
reasonable accommodation.
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CONSIDERATIONS WHEN LEAVE IS PROVIDED AS A
REASONABLE ACCOMMODATION
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The perennial question: How much leave should be
provided?
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There is no bright line rule as to how long a leave the
faculty member must provide as a reasonable
accommodation so analysis is always very fact-specific.
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When determining a baseline for what is reasonable at
a location, consider:
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What is the leave history?
Will a leave of a specific duration pose an undue
hardship?
Will the faculty member still be considered qualified?
The amount of leave non-disabled faculty members are
provided.
The average amount of leave provided to disabled faculty
members at your location.
CONSIDERATIONS WHEN LEAVE IS PROVIDED AS A
REASONABLE ACCOMMODATION
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When in doubt:
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Enter into the IP to obtain information about the
nature and extent of the leave and the ability of the
faculty member to return to work in the future.
Assess the impact of the continued leave of
absence on the department, coupled with a lack of
information about when, or if, the faculty member
will return to work.
Remember: When a faculty member can work with a
reasonable accommodation other than a leave of absence,
the employer may not require the faculty member to take a
leave.
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REASSIGNMENT TO AN ALTERNATIVE POSITION
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What positions should be considered?
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Vacant (or soon to be vacant) positions for which the
faculty member is qualified.
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Faculty member has the necessary skill, knowledge,
experience and satisfies other job-related requirements, and
Faculty member can perform the essential functions with or
without reasonable accommodation.
REASSIGNMENT TO AN ALTERNATIVE POSITION
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When is a transfer to a vacant position considered?
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If the faculty member can no longer perform the essential
functions of his or her own position even with
accommodation; or
If accommodation of the essential functions of a faculty
member’s own position creates an undue hardship; or
If both the employer and faculty member agree that a
reassignment is preferable to being provided an
accommodation in the present position; or
If a faculty member requests reassignment to gain access
to medical treatment for his or her disabling condition(s)
not easily accessible at the current location.
QUESTIONS?
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