30.7% 17.9% Outwit, Outlast, Outplay: Insider and Outsider Tips on Surviving The Disability Accommodation Process

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1 Outwit, Outlast, Outplay: Insider and Outsider Tips on Surviving The Disability Accommodation Process December 6, 2017 CALPELRA Presented by Corrie J. Klekowski, Esq. Michael Etchepare, Esq. 17.9% 30.7% Paul, Plevin, Sullivan & Connaughton LLP 1

2 48% Today s Topics Include Understanding your Interactive Process obligations Strategies for finding successful accommodations and preventing liability Employers have an affirmative obligation to engage in the interactive process to provide reasonable accommodation to qualified individuals, unless doing so would cause an undue hardship. Paul, Plevin, Sullivan & Connaughton LLP 2

3 Recognize the Accommodation Request Collect Necessary Information Brainstorm Possible Accommodations Select Reasonable Accommodation(s) Interactive Process No magic words Directly from employee Indirectly from healthcare provider or family Observation or perception Medical certification, status updates Unambiguous restrictions or limitations; no diagnosis Employee s essential job duties Ask employee for ideas Request medical provider recommendations Document all communications and efforts to accommodate Accommodation must be effective Accommodation must be specific to the individual employee and their limitations Accommodation must enable employee to perform essential job functions Monitor and Adapt Follow up with employee after accommodation in place Monitor effectiveness of the accommodation Make adjustments to accommodation as appropriate Ongoing obligation to ensure effective accommodation The Request Gathering Information Paul, Plevin, Sullivan & Connaughton LLP 3

4 Explore Ideas Ask for Suggestions Determine the Accommodation Follow Up Select Accommodation(s) The Interactive Process is Complete When Paul, Plevin, Sullivan & Connaughton LLP 4

5 Outlast The first to quit, loses. Paul, Plevin, Sullivan & Connaughton LLP 5

6 Out CHECK IN AND FOLLOW UP But, what about I just need two more weeks. I just need two more weeks. I just need two more weeks Paul, Plevin, Sullivan & Connaughton LLP 6

7 Leave INSERT FLOW FMLA-CFRA CHART Eligible? A with Interactive Process overlay Workers Compensation? Employer Policy? Finite Leave Outside of Policy? How Long is Enough? Tips to Avoid Indefinite Leave Require prompt and regular medical status updates Require specific anticipated return to work date Do not accept return, subject to reevaluation If medical provider changes a return to work date, require a written explanation and support for the new date Evaluate whether additional leave will assist employee in returning to work Paul, Plevin, Sullivan & Connaughton LLP 7

8 Managing your managers: But why can t we get rid of her? Outplay Paul, Plevin, Sullivan & Connaughton LLP 8

9 Union Representatives have the right to attend interactive process meetings Sonoma County Superior Court, (2017) PERB Decision No C CASE STUDY: The Doctor Who Knows Best My Disability Made Me Do It Dealing With Disability-Related Misconduct Paul, Plevin, Sullivan & Connaughton LLP 9

10 Case Study: The Employee Who Stops Following Her Own Accommodations Case Study: The Narcoleptic Dispatcher Outwit Paul, Plevin, Sullivan & Connaughton LLP 10

11 BE CREATIVE Accommodation Overview Reasonable Accommodation Make existing facilities accessible NOT a Reasonable Accommodation Eliminate essential functions Acquire/modify equipment Modify work schedule Defined period of unpaid leave Change production standards Purchase personal use items (i.e., prosthetic limb, eyeglasses, hearing aids) Provide indefinite leave Consider Policy Modifications Job restructuring Reassignment to vacant position (a last resort accommodation) Excuse past policy violations Create a new job; Bump an employee from his/her job Promote unqualified employee to a vacant job 100% healed from injury policies may violate the FEHA Department of Fair Employment & Housing Press Release March 14, 2017 Paul, Plevin, Sullivan & Connaughton LLP 11

12 Retroactive changes to disability accommodation policies are risky Atkins v. City of Los Angeles (Cal. App.) CASE STUDY: The Accommodation Laundry List Thank you! Corrie J. Klekowski Paul, Plevin, Sullivan & Connaughton Michael J. Etchepare Judicial Council of California Paul, Plevin, Sullivan & Connaughton LLP 12