Presented by The Department of Fair Employment & Housing, an Agency of the State of California Annmarie Billotti, Staff Counsel THE FEHA, WORKERS' COMPENSATION, AND THE ADA: Finding a Way to Untangle the Web Text Box: Introduction: The Fair Employment and Housing Act Government Code section 12900, et. seq. Text Box: § 12926.1, subds. (a) (eff. 01/01/01) Text Box: § 12926.1, subd. (b)Text Box: California prohibits discrimination: Against job applicants & employees On the basis of actual or perceived disability Text Box: § 12926.1, subd. (c)Text Box: Under California law, the following are disabilities: “Limits”= makes the achievement of a life activity difficult. Text Box: § 12926.1, subd. (c)Text Box: California law: Disability limits a major life activity. Federal law: Disability substantially limits a major life activity. * Examples: Medications, assistive devices, prosthetics, reasonable accommodations Text Box: Limits § 12926.1, subd. (c)Text Box: California law: Determined without regard to mitigating measures* (Unless the mitigating measure itself limits a major life activity) Federal law: Mitigating measures taken into account. Text Box: § 12926.1, subd. (c)Text Box: “Working" is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments. Text Box: “Physical Disability” defined § 12926, subd. (k) Text Box: ~ and ~ (B) Limits a major life activity. For purposes of this section: (i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitiga Text Box: (ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult. Text Box: Any other health impairment not described in paragraph (1) that requires special education or related services. Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described Text Box: Includes, but is not limited to: (1) Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activityText Box: “Mental Disability” defined § 12926, subd. (i) A health impairment related to a diagnosis of cancer (or a record or history of cancer) ~ or ~ A genetic characteristic known to statistically increase the risk of development of a disease or disorder, but which is not presently associated with any symptoms of the disease or disorder Text Box: “Medical Condition” defined § 12926, subd. (h) Text Box: A woman carries a gene known to statistically increase the risk of developing breast cancer. She has not, however, been diagnosed with breast cancer. Is she protected under California law? Text Box: Example Text Box: Yes! Note: She is also protected under Government Code section 12940, subdivision (o): It is an unlawful employment practice for an employer to subject any applicant or employee to a test for the presence of a genetic characteristic. Text Box: Employer responsibilities under the FEHAText Box: Applicable to California employers with five (5) or more employees Text Box: § 12926.1, subd. (e) § 12940, subds. (m), (n) Applicant/employee’s right to privacy limitsemployer’s procurement of medical records and information: Must be directly related to the disability and need for accommodation. Text Box: Procurement of employee medical records Applicant/employee maysubmit a report from an independent medical examiner before disqualification from employment occurs. Must be kept separately and confidentially as any other medical records, except when a supervisor or manager needs to be informed of restrictions for accommodation purposes or for safety reasons when emergency treatment might be required. (Cal. Code of Regs., tit. 2, §7294.0, subd. (d).) Text Box: Exception to duty to provide reasonable accommodationText Box: Employer can demonstrate that an accommodation would impose an “undue hardship” upon its business operation. (Gov. Code, § 12940, subd. (m); Cal. Code of Regs., tit. 2, § 7293.9.) Text Box: An action requiring significant difficulty or expense when considered in light of the following: Nature and cost; As to the specific facility: Overall financial resources, number of persons, and effect on expenses and resources, or the acText Box: “Undue hardship” Text Box: (3) Overall resources of the employer, the overall size of the business with respect to the number of employees, and the number, type and location of facilities; (4) Type of operation -- composition, structure and functions of the workforce; a Text Box: Geographic separateness, administrative or fiscal relationship of the facility or facilities involved. (Cal. Gov. Code § 12926, subd. (s); Cal. Code Regs., tit. 2, § 7293.9(b).). Text Box: Exception to duty to provide reasonable accommodationText Box: No reasonable accommodation exists to enable an employee to perform his or her position The employee cannot perform the essential functions of his or her position even with an accommodation Note: An employer is not required to create a vaca The employerbears the burden of showing that an exception to its obligation to provide a reasonable accommodation applies. (Cal. Code Regs., tit. 2, §§7293.8, subd. (b); 7293.9.) Text Box: Employer’s Burden Text Box: What is a “reasonable accommodation”?Text Box: Any effective measure that would enable an applicant or employee with a disability to perform the essential functions of his or her position. (Gov. Code § 12926, subd. (n); Cal. Code Regs., tit. 2, § 7293.9, subd. (a).) Examples: •Job restructuring •Job sharing •Transfer to a vacant position •Re-allocation of duties •Adjustment of work hours •Making facilities accessible and usable •Providing tools, equipment, supplies, etc. •Modifying examinations or policies •Leave of absence Text Box: Types of reasonable accommodation Text Box: There are infinite possibilities, depending upon the employer’s business needs, the employee’s qualifications, etc. Note: California employers must reasonably accommodate any employee who wishes voluntarily to enter and participate in an alcohol or drug rehabilitation program. (Cal. Lab. Code §§1025-1028.) Text Box: Essential FunctionsText Box: The “fundamental job duties” of the position in question, not the “marginal functions.” (Gov. Code § 12926, subd. (f).) Text Box: A function may be essential if (illustrative, not exclusive reasons): a) The position exists to perform that function; Limited number of employees perform it; The function is highly specialized, requires special expertise/ability. (Gov. Code § Text Box: Evidence that a function is “essential” includes, but is not limited to: a) Employer’s judgment b) Previously prepared written job descriptions c) Amount of time spent performing function Text Box: (4) The consequence of not requiring the incumbent to perform the function; (5) The terms of a collective bargaining agreement, if any; (6) The work experiences of past incumbents in the job; and (7) The current work experiences of incumbents Text Box: The Interactive Process The EEOC Interpretive GuidelinesText Box: (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those Text Box: (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and Text Box: 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. (29 C.F.R. § 1630, App. §1630.9 p. 364.) Text Box: A Comparison of California and Federal LawText Box: FEHA . Jurisdiction: 5 or more employees . Impact on life activities: Limitation . Mitigating measures: Not consideredText Box: ADA . Jurisdiction: 15 or more employees . Impact on life activities: Substantial limitation . Mitigating measures: Considered Text Box: A Comparison of California and Federal LawText Box: FEHA Working: Deemed a major life activity regardless of whether employee cannot perform a particular or broad class of employment Text Box: A Comparison of California and Federal LawText Box: FEHA Interactive process: A failure to engage is a separate violation of the FEHA Text Box: A Comparison of California and Federal LawText Box: FEHA Who is covered? A job applicant or employee Burden of proof: Employer must prove employee cannot perform essential functions with or without accommodationText Box: ADA . Who is covered? A “qualified individual with a disability” Burden of proof: Employee must prove he/she is qualified & can perform essential functions with or without accommodation Text Box: Moore-Brown-Roberti Family Rights ActAlso referred to as theCalifornia Family Rights Act(“CFRA”) (Gov. Code §12945.2; Cal. Code of Regs., tit. 2, §7297) Text Box: Note: Some aspects of the CFRA and FEHC regulations are the same as or similar to the federal Family Medical Leave Act (“FMLA”) of 1993, 29 U.S. C. §§2601, et. seq. and its implementing regulations. Text Box: For instance, the FEHC regulations incorporate the FMLA definitions of various terms and incorporate the federal regulations by reference to the extent that they are consistent with controlling California law. (Cal. Code of Regs., tit. 2, § 729 Covered Employers ..Employers with 50 or more employees within 75 miles of the worksite of the employee requesting leave. ..Note: Religious non-profit employers are notexempt from CFRA. Text Box: Eligible Employees Text Box: What benefit is provided?Text Box: A leave of up to a total of 12 workweeks in any 12-month period for family and medical leave, with a guarantee of employment in the same or a comparable position upon the termination of the leave. (Gov. Code §12945.2, subd. (a).) Text Box: “Family care and medical leave”Text Box: Leave for any of the following: The birth of a child of the employee or the placement of a child with the employee through adoption or foster care; and The “serious health condition” of the employee, or the employee’s child, parent, spouse, Text Box: The 12-month period is determined by the employer using any of four (4) methods listed in the federal FMLA regulations: Calendar year Fiscal year Employee’s anniversary date “Rolling” year Computation of the 12 workweek benefit period“12 workweeks”means the equivalent of 12 of the employee’s normally scheduled workweeks. Intermittent leaveIntermittent leave or a reduced work schedule must be permitted by the employer if appropriate. Only the amount of leave actually taken is counted toward the 12 week entitlement. Example Text Box: Employee needs to be absent from work 2 hours per week for physical therapy. Only those two hours per week can be charged against the employee’s leave entitlement. Definition of Serious Health Condition ..An illness, injury, impairment, or physical or mental condition that requires either inpatient care* orcontinuing treatment or supervision by a health care provider on an outpatient basis. *Inpatient care must involve an overnight stay in a hospital, hospice or residential health care facility Text Box: A period of incapacity lasting more than three (3) consecutive calendar days, and any subsequent treatment or incapacity due to the same condition; Incapacity or treatment for incapacity due to a chronic serious health condition; Permanent Text Box: A period of absence to receive multiple treatments plus any subsequent period of recovery. (Gov. Code, § 12945.2, subd. (a)(8); CFR, §825.114, subd. (a).) Text Box: For an employee to take CFRA leave for his or her own serious health condition he/she must be unable to perform the essential functions* of his or her condition. For an employee to take CFRA leave for the serious health condition of her chil Text Box: Does not include leave taken for disability on account of pregnancy, childbirth, or related medical conditions. (Gov. Code, § 12945.2, subd. (c)(3)(C).)Text Box: Serious Health Condition Employee Rights ..Leave for up to twelve (12) workweeks in any twelve (12) month period ..Maintenance of health care benefits ..Retention of employee status ..Reinstatement to same or comparable position at conclusion of leave Text Box: The employee may elect or an employer may require that the employee utilize accrued vacation, sick leave (for the employee’s own serious health condition), or other accrued paid or unpaid time. (Gov. Code, § 12945.2, subd. (e).)Text Box: Employee Rights Text Box: The employer shall maintain and pay for coverage under a “group health plan” at the level and under the conditions coverage would have been provided absent the leave. (Gov. Code, § 12945.2, subd. (f).) Text Box: The employer shall recover the premium paid only if both of the following occur: The employee fails to return from leave; and The employee’s failure to return is for a reason other than the continuation, recurrence, or onset of a serious heal Text Box: The employee retains his/her status as an employee during CFRA leave and that leave does not constitute a break in serve, including for purposes of: Longevity Seniority under a collective bargaining agreement Employee benefit plans (Gov. Text Box: The employee returns from CFRA leave with no less seniority than when the leave began for purposes of: Layoff Recall Promotion Job assignment Seniority-related benefits, e.g. vacation (Gov. Code, § 12945.2, subd. (g).)Text Box: Employee Rights Text Box: Employer must provide a guarantee of reinstatement to the same or comparable position (unless the employee is a “key employee” and reinstatement would result in substantial and grievous economic injury) in writing if the employee so requests. Text Box: Employee Rights Text Box: Reinstatement may be denied if the employee would not have been employed at the time reinstatement is requested (e.g., position eliminated perhaps due to reduction in work force). (Cal. Code of Regs., tit. 2, § 7297.2, subd. (c)(1).)Text Box: Exception Text Box: Provide employer at least verbal notice sufficient to make the employer aware of the need for leave, including, if known, the timing and duration of the leave without disclosing employee’s specific medical condition, diagnosis, or treatment EText Box: Employee Responsibility Text Box: Provide certification, as requested by his/her employer (Gov. Code, § 12945.2, subd. (k)(1); Cal. Code of Regs., tit. 2, § 7297.4 , subd. (b).)Text Box: Employee Responsibility Text Box: For employee’s own serious health condition: (1) the date the serious health condition commenced (if known); (2) the probable duration of the condition; and (3) a statement that the employee is unable to work or to perform one or more of the ess Text Box: Usually, the exclusive remedy for employees injured on the job, even when an employer’s negligence causes the injury, but not if employee’s occupational injury also qualifies as a disability or a serious health condition. Text Box: Six (6) types of benefits are provided, depending on the nature, date & severity of the injury: Medical care; Temporary disability benefits; Permanent disability benefits; Vocational rehabilitation services; Supplemental job displacement be Text Box: For employee unable to return within three (3) days of injury Payable until employee returns to work or is deemed “permanent and stationery” Employee generally granted temporary or light duty Employer only required to provide temporary or light Text Box: Temporary Disability Benefits Text Box: Available to “qualified injured worker” deemed “permanent & stationery” Benefits: Individualized plan, vocational counseling, training, maintenance allowance Goal: To return employee to work in a new field/position for a new employerText Box: Vocational Rehabilitation Services Injuries sustained prior to 01/01/04 Text Box: Employee is “permanent and stationery” – deemed unable to perform functions of job Usually determined without regard to: Essential functions of the position or Evaluation of whether employee can perform essential functions of position with or Text Box: Injury results in: Permanent disability Employee does not return to work within 60 days after temporary disability ends Employer does not offer “modified” or “alternative” workText Box: Supplemental Job Displacement Benefit Injuries sustained after 01/01/04 Text Box: Employer is encouraged to offer “modified” or “alternative” work If not offered, employee gets voucher for education-related retraining or skill enhancement, payable to a state-approved or accredited school Text Box: Usually determined without regard to: Essential functions of the position or Evaluation of whether employee can perform with or without reasonable accommodation Text Box: “Permanent & Stationery” status Text Box: Employers may not discharge, threaten to discharge, or in any manner discriminate against an employee who has (1) filed (or made known an intention to file) a claim; (2) received a rating, award, or settlement; or (3) testified in another empl Text Box: Violation = a misdemeanor Employee remedies: Increased compensation and/or Reinstatement and reimbursement for lost wages and benefits Text Box: Employee’s condition may concurrently qualify as: An occupational injury A serious health condition A disability Employee may be concurrently protected by: The FEHA CFRA Workers’ Comp Text Box: Interrelationship between the FEHA, CFRA, and Workers’ Compensation Text Box: Evaluate employee’s condition and provide broadest possible protections/rights to employee! Text Box: Employer Responsibility Text Box: Workers’ Comp does not pre-empt application of the provisions of the FEHA, including claims of discrimination on the basis of disability, irrespective of whether the employee is disabled as the result of a work injury or the employee has fil Text Box: The FEHA’s definition of “disability” controls: Work comp injury may or may not constitute a “disability” under FEHA Broader protections than under the ADA Text Box: Note: If the employee is “disabled” within the meaning of the FEHA, the employer must engage in the interactive process and reasonably accommodate the employee (subject to the limitations set forth above), regardless of whether the employer has Text Box: A disability under FEHA may or may not also be a “serious health condition” under CFRA – or vice versa. The employee’s medical status must be independently analyzed with reference to both definitions. Text Box: The FEHA and CFRA Text Box: Example Employee suffers a work-related injury and, as a result, becomes disabled within the meaning of the FEHA. What are the employer’s responsibilities as they relate to evaluating whether the employee should be returned to work? Text Box: The employer must consider: Can the employee perform the essential functions of the position with or without reasonable accommodation? If the employee is not yet ready to return to duty: Might the employee’s leave constitute a reasonable a Text Box: The employer must consider: If the employee has already taken leave, has the employee exhausted his/her CFRA leave? If so, should additional leave time of a finite duration be granted as a reasonable accommodation? Text Box: Workers’ Compensation leave and CFRA-qualifying leave run concurrently.* (Cal. Code of Regs., tit. 2 §§ 7297.0 (o), 7297.4 (a)(1)(A).) * If the employer has complied with the CFRA notice and designation requirements.Text Box: CFRA and Workers’ Compensation Text Box: CFRA-qualifying leave = 12 week maximum. Workers’ Compensation leave = no maximum duration. Text Box: Employer may: Replace employee on Workers’ Compensation leave if necessary due to business realities but not during first 12 weeks if leave is also CFRA-qualifying. Refuse to reinstate employee due to fears of reinjury if based upon medical eviText Box: WCA Text Box: The employer may be ordered to: cease and desist the discriminatory practice; hire or reinstate the applicant or employee; (3) provide disability discrimination prevention training for all employees, supervisors and managers at the employer’s Text Box: Employee Remedies Under the FEHA Text Box: (4) post a notice for one (1) year in a conspicuous place stating that it violated the FEHA and noting the remedies ordered by the Fair Employment and Housing Commission or Superior Court; (5) pay actual damages to the employee or applicant inc Text Box: Fair Employment and Housing Commission: Combined total for emotional distress damages and administrative fines cannot exceed $150,000.00 per complainant per respondent. Superior Court: Unlimited compensatory and punitive damages. Text Box: DFEH Complaint: Must be filed within 1 year Prerequisite to filing a civil action for damages (Gov. Code, § 12965, subd. (b).) Text Box: Try to resolve the issue with your immediate supervisor. Contact your employer’s Reasonable Accommodation Coordinator or Human resources representative Contact the DFEH at (800) 884-1684 If a member of a collective bargaining unit, contact youText Box: Steps to Take If You Have Been a Victim of Discrimination Thank you for joining us today!Text Box: Questions and Answerswww.dfeh.ca.gov