Legal Issues Regarding Disabled Employees (A document distributed through the Vocational Rehabilitation Services/OIRM on UCLA campus.)

Management Procedures for the Interactive Process

Changes to California Assembly Bill 2222 of the Fair Employment and Housing Act place the burden on employers to obtain input from disabled employees on job accommodations. As of January 1, 2001, employers must engage a disabled employee in a timely, interactive discussion of possible accommodations that might permit the disabled employee to remain on the job. This obligation is triggered when the employee gives the employer notice of a disability and states a desire for accommodation. The obligation is also triggered if no request has been made, but the department knows of the existence of the employee's disability and the need for accommodation.

In codifying an affirmative employer duty to utilize an interactive process in development of job accommodations, the Legislature has created separate grounds for a lawsuit or administrative charge of discrimination. A disabled employee may now sue an employer for failure to engage in a timely, good faith interactive process even if the employer ultimately provides a reasonable accommodation, or if no reasonable accommodation is available.

AB 2222 requires heightened employer awareness of disability issues designed to assure that disabled employees are involved in developing effective accommodations for their jobs. Failure to investigate reasonable accommodations is legally equivalent to failure to investigate a complaint of sex discrimination/harassment.

THE PROCEDURE

The Interactive Process is an informal open discussion with the disabled employee to ascertain the precise job related limitation imposed by the employee's disability and how those limitations could be overcome with a reasonable accommodation. Even if the department's ability to accommodate the employee's disability seems doubtful, the department must still conduct a good-faith interactive process period of discovery including, but not limited to:

• A review of the employee's updated job description and any available physical job analysis. A job accommodation can not be considered without these.
• Identification of essential and nonessential job tasks and the purpose for which the job exists.
• With input from the disabled employee, identification of potential accommodations and assessment of how effective each would be in enabling the employee to perform essential functions of the job. Focus on what they can do.
• There are four levels of possible accommodation:
  1. Modification of job duties, job environment and/or work schedule.
  2. Lateral transfer into an existing position for which employee is qualified.
  3. Transfer to "demoted" position or position of lesser terms/conditions ("last resort accommodation.").
  4. Alternate Work for which the employee is qualified a salary equal to at least 85% of the employee's current rate. This must be a regular position lasting at least 12 months within reasonable commuting distance from the disabled employee's residence. (WC/RU94)

• Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
• Brainstorming of creative ways to allow the employee to continue working including:

  Job Accommodations
  Modified Work
  Transferable Skills
  Alternate Work
  

IF REASONABLE ACCOMMODATIONS ARE NOT POSSIBLE

The employer is not legally required to accommodate employee disabilities if the employer can demonstrate that:

1. The disabled employee is unable to perform the essential functions of the job; and that no reasonable accommodation exists that would enable the person to perform the essential functions of the job.
2. The person would create an imminent and substantial danger to him/her self or a substantial danger to others by performing the job; and that no reasonable accommodation can be made to remove or reduce the danger.

If reasonable accommodation is not possible, the results of the department's good faith effort must be documented.

Following the discussion, the disabled employee must be referred to the Campus Vocational Rehabilitation Counselor to:

1. Investigate possible transferable skills. This includes prior jobs, special training, degrees/certificates, awards, licenses, computer skills (math, bookkeeping, telephone, ordering, inventory), mechanical skills (use of hand tools, power tools), hobbies, and special interests.
2. Explore with the employee any alternate jobs on campus that the employee feels qualified to perform. Identify transferable skills that can be used in other jobs.

MEDICAL SEPARATION

Industrially injured employees should not be considered for medical separation until the employee is:

• Declared "Permanent and Stationary" by treating health professional of record.
• Precluded from returning to the employee's usual and customary occupation (regular job duties) and declared Qualified Injured Worker Status.
• Off pay status (used up extended sick leave benefits).

A Qualified Injured Worker (QIW) who is declared medically permanent and stationary, with restrictions precluding him/her from returning to their usual and customary duties (regular job duties), and who is recommended to participate in a vocational rehabilitation program must still be considered for possible accommodation in other positions on Campus.

Absent a "compelling business necessity, "...an employer cannot terminate an employee before his/her medical condition is found to be permanent and stationary." (Barns v. WCAB)

Prior to Medical Separation the department must assure that Modified/Alternate Work has been investigated within that department and throughout campus for a 30 day period and found not feasible and that the department has engaged in the interactive process with the injured worker regarding:

Reasonable Accommodations
Transferable Skills
Special Reemployment
Trial Employment
Special Selection Procedures
Disability Retirement Benefits
COBRA
UCRP Disability Retirement (if appropriate)

SOME CONSIDERATIONS FOR YOUR GOOD FAITH EFFORT

• Utilization of the interactive process in the development of reasonable accommodation demonstrates the employer's good faith effort and can protect the employer and supervisor from civil liability.
• A department never has to create a position as an accommodation.
• Departments need not accommodate employees whose disability leads to ongoing unpredictable absences.
• Termination on the basis of a reasonable performance standard is not discrimination on the basis of disability. However, thorough documentation of job performance deficiencies is essential to avoiding both University and supervisor liability for disability discrimination.
• Appropriate job accommodation is the employer's final determination, but employee preferences should be considered and utilized where appropriate. Accommodations provided do not have to be the most expensive or "best" accommodation; they only have to be "effective" by allowing the employee to perform the essential functions of the job.
• Make sure it's an interactive process. Engage the employee in discussion and keep the employee in the loop.
• Make sure the process is thorough and conducted in good faith. Consult the following resources for additional information and direction as required. If the employee requests, and provides appropriate medial authorization for you to do so, you may also consult with the employee's physician or ask the Vocational Rehabilitation Counselor to consult with the physician on your behalf.
  1. Job Accommodation Network (JAN) - 1-800-JAN-7234 (526-7234)
  2. Cindy Burt - Manager, Occupational Rehabilitation - (310)794-5590
  3. Willard Imai - Manager, Vocational Rehabilitation Services - (310)794-6951
  4. Michelle Hochstein - RTW Coordinator - (310)794-6955
  5. Octagon Risk Services - (310)794-8248

CAUTIONS

Employees are personally liable for prohibited harassment (race, religious, ... physical disability, mental disability, medical conditions, marital status, sex, age, or sexual orientation. FEHA AB 1856)

The courts will not accept a defense for a charge of disability discrimination:

1. The possibility of future harm to the person or to others.
2. The possibility that employing individuals with a disability will cause an employer's insurance rates to raise.
3. The claim that an employee must be 100 % fit to return to work.

NOTE: In all cases of accommodation, documentation is vital. However, it is imperative that the employee's confidentiality be protected. Medical files must be kept separate from the employee's personnel file and should be stored in a locked cabinet. Medical information must only be shared on a "need to know" basis.