Los Angeles County Fire Department. January 20, 2016

Transcription

1 Fitness for Duty George Cruz Donna McKinnon Battalion Chief Los Angeles County Fire Department IAFF Local 1014 IAFF Assistant Legal Counsel Associate Woodley & McGillivary LLP January 20, 2016

2 Please note that this presentation is offered solely for informational purposes, and is not intended, nor should it be relied upon, as legal advice. An individual or affiliate in need of legal advice or assistance on any topic covered in this presentation should contact and confer with legal counsel to obtain legal advice appropriate to his or her particular situation.

3 Fitness for Duty What is fitness for duty?

4 Overview Medical examinations Role of NFPA 1582 Return to duty Physical agility testing Drug testing Fitness for duty and discrimination laws

5 Medical Examinations Under Americans with Disabilities Act (ADA), employer can require medical examinations only if job-related and consistent with business necessity Medical testing of public safety employees generally allowed

6 Job-related and consistent with business necessity: Impair ability to perform essential job functions Pose a threat Exceptions No fishing expeditions

7 Protection of medical information from exam: Must be kept confidential under ADA and Health Insurance Portability and Accountability Act (HIPAA) Cannot be used to discriminate against employee Can be used to find reasonable accommodations

8 Local unions can challenge medical examinations that go beyond narrow job-related standard Local unions can challenge medical examinations if information not kept confidential or is improperly used

9 The Fire Department started to require annual medicals for fire fighters. The physical requires a vision test, hearing test, blood pressure check, chest X-ray, and an HIV test. Once the exams are completed, the physician gives the results to the Fire Chief, detailing the results of the tests, and the Fire Chief keeps these results in a file cabinet in his office. Any issues?

10 What if employee refuses to take a permissible medical exam? Insubordination Termination

11 Candidates: Pre-Offer Employer cannot: Require medical exam Inquire about disabilities Employer can: Inquire about ability to perform essential job functions

12 Candidates: Post-Offer Employer can condition offer on passing a medical exam All entering employees must be required to undergo same exam, regardless of disability

13 NFPA 1582 Standard on Comprehensive Occupational Medical Program for Fire Departments Standard, not law In the absence of law, courts refer to nationally recognized standards NFPA 1582 addresses two categories 1. Candidate 2. Incumbent

14 NFPA Candidate Category A cannot be certified as meeting the medical requirements of this standard Category B can be certified as meeting the medical requirements of this standard only if they can perform the essential job tasks without posing a significant safety and health risk to themselves, members, or civilians

15 NFPA Incumbent NFPA lists certain medical conditions that potentially interfere with an incumbent fire fighter s ability to safely perform essential job tasks Possession of one or more of the conditions listed in Chapter 9 of NFPA 1582 for incumbent fire department members does not indicate a blanket prohibition

16 The Fire Department asked candidates with job offers and incumbent fire fighters to undergo annual medicals. After they were completed, the physician filed a report with the Fire Chief, listing any NFPA 1582 Category B conditions that were discovered. The Fire Chief immediately suspended with pay those employees with Category B conditions and refused to hire any candidates with these conditions. Any issues?

17 Return to Duty Employers may require a fit-for-duty exam before an employee returns to work after illness/injury leave, if employer has: Reasonable belief employee currently cannot perform essential job functions, or A uniformly applied policy

18 Return-to-duty exams must be limited in scope Can only test whether employee can perform essential job functions No fishing expeditions

19 Employer may ask returning employee to provide information Certification from health care provider stating that employee is able to work Must have uniform policy

20 Local unions can challenge return to duty tests if they are not uniformly applied, if the employer asks for too much information, or if the exams are too broad

21 One of your members injures his back while on the job. He visits his doctor, who states that he must stay in bed for one week, and when he returns to work, he will have a lifting restriction of 30 pounds. The member took sick leave, and when he returned to work, he presented the doctor s note detailing the lifting restrictions. The Fire Department requires him to visit the town physician to determine whether he is able to return to work under a policy that allows the Fire Chief to order a return to duty exam at his discretion. The town physician required a full work-up, including a chest X-ray and electrocardiogram. The doctor certified him to return to work, and his Captain informed his shift that he has lifting restrictions. Any issues?

22 Physical Agility Testing Under most circumstances, public safety employers can give periodic physical agility tests (PAT) NOT medical examination under ADA But anti-discrimination laws apply Must give to all employees, regardless of disability Mandatory subject of bargaining (incumbents)

23 In order to validate any PAT, a department must follow procedures outlined in EEOC s Uniform Guidelines of Employee Selection Criteria Must demonstrate test is: Technically Feasible Based on a Job Analysis Uses Criterion Measures (Pass/Fail) Created using Representative Population Statistically Supported (no dumb luck) Appropriate for Operational Use (resembles job tasks) Enough criteria are used to make assessment Conduct studies of fairness

24 PAT standards Cannot have different standards for different groups Unless validated, cannot have disproportionately negative effect on protected group (e.g., age or sex)

25 Bases for PAT challenges: ADA ADEA (Age Discrimination in Employment Act) Title VII CBA

26 Drug Testing Protections: The Fourth Amendment offers little protection for public safety employees against drug testing State or local laws may limit drug testing CBA

27 Testing for illegal drug use is not considered medical examination under ADA Employers cannot test for legal drug use unless test is job-related and consistent with business necessity

28 Local unions can challenge both the existence of random drug testing programs and the specific details of a program s implementation

29 IAFF Position on Drug Testing Prevention, treatment, rehabilitation, and education are as important as testing Written policy prior to testing must clearly state objective of program Must address due process, safety and health of all parties, and concern for the dignity of the worker

30 Fitness for Duty and Discrimination Disability Discrimination Prohibited under ADA Includes any adverse job action based on disability Employees with disabilities cannot be treated differently

31 Disability Discrimination Employers must offer reasonable accommodations to employees with disabilities Unless undue hardship Even if disability discovered during employerrequired medical exam

32 Requesting Reasonable Accommodation Request Dialogue/interactive meeting between employer and employee Impact on job performance

33 Reasonable Accommodations (cont.) Obtain all medical work restrictions Evaluate if work restrictions will impact ability to perform essential job functions Modified duty

34 Reasonable Accommodations (cont.) Information gathering may require employer to offer leave under the Family and Medical Leave Act (FMLA) and, if applicable, state laws (e.g., CFRA) Employer may request clarification from treating physician Provide job analysis or job description

35 Reasonable Accommodations (cont.) Evaluate if unintentional consequences have arisen from reasonable accommodation What precedent has or will be set

36 Disability Discrimination Recap Must have disability If disabled and cannot perform essential job functions, not protected under ADA If disabled and can perform essential job functions with reasonable accommodation but employer shows undue hardship, not protected under ADA

37 Your member has asthma but uses an inhaler. He failed the pulmonary function testing portion of his annual medical because he did not use his inhaler and was judged unfit for duty by the physician. The Fire Department placed him on light duty. He comes to you for help. How would you advise him? The member, happy to be back on duty after your assistance, decided to apply for a promotion. The Fire Chief, concerned that he may have an asthma attack while he is fighting a fire, decided to promote another fire fighter. He also informed all of the fire officers that your member has asthma. Any issues?

38 Age Discrimination ADEA prohibits discrimination against employees over 40 Mandatory retirement ages for fire fighters are permissible

39 Sex Discrimination Title VII and the Equal Protection Clause prohibit discrimination based on sex

40 Genetic Information Discrimination Genetic Information Nondiscrimination Act (GINA) prohibits discrimination on the basis of genetic information Employer may not use genetic information to make employment decisions

41 If a local union member believes that a fitness for duty program has discriminated against him/her, he/she may file a complaint with the Equal Employment Opportunity Commission

42 The Fire Department started requiring annual physical fitness testing for its fire fighters. The test includes a stair climb, hose drag, equipment carry, and a mile run, where men are required to finish under 7:00 and women are required to finish under 8:00. The Fire Department also requires annual medical exams, but this year, due to money issues, only employees over 45 are required to take a pulmonary function test and be screened for prostate cancer. The Department cannot afford to give these tests to every fire fighter. Every fire fighter is also now required to provide their family medical history. Any issues?

43 Summary The IAFF recommends that fitness for duty programs emphasize general health benefits and be holistic, rehabilitating, and educational

44 Summary The IAFF Legal Department has the resources to assist IAFF locals facing concerns about fitness for duty issues that violate legal standards

45 You Could Win an ipad! When you submit your workshop and overall evaluations, you are automatically entered in two drawings for a new ipad Mini! One winner for workshop evaluations One winner for overall evaluations Winners will be announced February 10

46 You Could Win an ipad! Complete your workshop evaluations using the 2016 HRC app: Login to the Frontline App Select the 2016 HRC Menu Go to My Agenda Go to My Workshop and select the title of the workshop you are attending Select the click here link Complete the evaluation be sure to answer all (*)required questions Click Submit You will receive a message that the form was submitted successfully. If there is an error message, correct the errors and resubmit. Thank you!