Medical Accommodations Disability discrimination

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Medical Accommodations Disability discrimination

• PROHIBITING DISABILITY DISCRIMINATION
• IN EMPLOYMENT

UPE, Local 1 Stewards Council August 2005
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Disability Discrimination Laws

• Two primary laws on disability discrimination in
  employment
• ADA - Americans with Disability Act Federal
• FEHA- Fair Employment and Housing Act State of
  California

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THE ADA
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What is the ADA

• The Americans with Disabilities Act is a federal
  law that was enacted in 1990
• It now applies to all employers with 15
  employees
• Title I and V relate to employment issues

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PURPOSE OF THE ADA

• (1) to provide a clear and comprehensive
  national mandate for the elimination of
  discrimination against individuals with
  disabilities
• (2) to provide clear, strong, consistent,
  enforceable standards addressing discrimination
  against individuals with disabilities
• (3) to ensure that the Federal Government plays a
  central role in enforcing the standards
  established in this chapter on behalf of
  individuals with disabilities and
• (4) to invoke the sweep of congressional
  authority, including the power to enforce the
  fourteenth amendment and to regulate commerce, in
  order to address the major areas of
  discrimination faced daytoday by people with
  disabilities.

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ADA It is illegal to discriminate in any aspect
of employment, including

• Hiring and firing
• Compensation, assignment, or classification
• Transfer, promotion, layoff or recall
• Job advertisements
• Testing
• Use of company facilities
• Training
• Fringe benefits
• Pay, Retirement plans, and disability leave
• Other term and conditions of employment

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It is illegal to discriminate because an employee
complains of discrimination

• Filing a charge of discrimination
• Participating in an investigation
• Opposing discriminatory practices.

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ADA DEFINITIONS
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Individual with a disability

• An individual with a disability under the ADA is
• a person who has a physical or mental impairment
  that substantially limits one or more major life
  activities,
• has a record of such an impairment,
• or is regarded as having such an impairment.

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Major Life Activities

• activities that an average person can perform
  with little or no difficulty such as walking,
  breathing, seeing, hearing, speaking, learning,
  and working.

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Supreme Court Rulings

• US Supreme Court rulings have had a major impact
  on ADA
• Sutton, Murphy, and Barnett
• 3 recent US Supreme Court Rulings on ADA have
  effected definition of disability hardship
  and reasonable accommodation

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US Supreme Court Rulings

• Supreme Court has ruled that the determination of
  whether a person has an ADA "disability" must
  take into consideration whether the person is
  substantially limited in performing a major life
  activity when using a mitigating measure.
• This means that if a person has little or no
  difficulty performing any major life activity
  because s/he uses a mitigating measure, then that
  person will not meet the ADA's first definition
  of "disability."

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Qualified Individual with a Disability

• A qualified employee or applicant with a
  disability is someone who satisfies skill,
  experience, education, and other job-related
  requirements of the position held or desired, and
  who, with or without reasonable accommodation,
  can perform the essential functions of that
  position.

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Reasonable Accommodation

• Reasonable accommodation may include, but is not
  limited to, making existing facilities used by
  employees readily accessible to and usable by
  persons with disabilities job restructuring
• modification of work schedules providing
  additional unpaid leave reassignment to a vacant
  position acquiring or modifying equipment or
  devices adjusting or modifying examinations,
  training materials, or policies and providing
  qualified readers or interpreters.

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When is an accommodation needed?

• Reasonable accommodation may be necessary to
• apply for a job
• perform job functions, or
• enjoy the benefits and privileges of employment
  that are enjoyed by people without disabilities.

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Production standards

• An employer is not required to lower production
  standards to make an accommodation.

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Undue hardship

• An employer is required to make a reasonable
  accommodation to a qualified individual with a
  disability unless doing so would impose an undue
  hardship on the operation of the employer's
  business.

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Undue hardship on the employer

• Undue hardship means an action that requires
  significant difficulty or expense when considered
  in relation to factors such as a business' size,
  financial resources, and the nature and structure
  of its operation.

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Personal Use Items

• An employer generally is not obligated to provide
  personal use items such as eyeglasses or hearing
  aids.
• Exception may exist for items such as glasses
  used only for computers

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Prohibited Inquiries and Examinations

• Before making an offer of employment, an employer
  may not ask job applicants about the existence,
  nature, or severity of a disability.
• Applicants may be asked about their ability to
  perform job functions.
• A job offer may be conditioned on the results of
  a medical examination, but only if the
  examination is required for all entering
  employees in the same job category.
• Medical examinations of employees must be
  job-related and consistent with business
  necessity.

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DRUG AND ALCOHOL USE

• Employees and applicants currently engaging in
  the illegal use of drugs are not protected by the
  ADA when an employer acts on the basis of such
  use.
• Tests for illegal use of drugs are not considered
  medical examinations and, therefore, are not
  subject to the ADA's restrictions on medical
  examinations.
• Employers may hold individuals who are illegally
  using drugs and individuals with alcoholism to
  the same standards of performance as other
  employees.

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Oakland EEOC office has jurisdiction over
Sacramento County in enforcing ADA complaints

• 1301 Clay Street Suite 1170-N Oakland, CA
  94612-5217
• Phone[phone] Fax[phone]TTY510-637-323
  4
• DirectorJoyce Hendy
• Office Hours Monday - Friday from 800 a.m. -
  430 p.m. Please call first to obtain information
  or schedule an appointment.

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FEHA

• Fair Employment and Housing Act

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What is the FEHA?

• Fair Employment and Housing Act first passed in
  1974
• Enforced by California DFEH
• Broader in scope than ADA

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California Law prohibits discrimination

• In general, California law prohibits
  discrimination against people with disabilities.
  An employer who discriminates against a person
  because of his/her disability may do so only if
  the employer can demonstrate that
• The person 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
• The person would create an imminent and
  substantial danger to himself/herself or a
  substantial danger to others by performing the
  job and that no reasonable accommodation can be
  made to remove or reduce the danger.

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FEHA requires 2 things of employers

• Employers must provide reasonable accommodation
  for those applicants and employees who, because
  of their disability, are unable to perform the
  essential functions of their job.
• Employers must engage in a timely, good faith
  interactive process with applicants or employees
  in need of reasonable accommodation.

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Reasons NOT to discriminate

• The following two reasons are not legally
  acceptable excuses for discrimination
• There is a possibility of future harm to the
  person or to others
• That employing individuals with a disability will
  cause an employer's insurance rates to rise

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PURPOSE OF FEHA

• The FEHA prohibits harassment and discrimination
  in employment
• because of race, color, religion, sex (gender),
  sexual orientation,
• marital status, national origin (including
  language use restrictions),
• ancestry,
• disability (mental and physical, including HIV
  and AIDS), medical condition (cancer/genetic
  characteristics), age (40 and above), pregnancy,
  denial of medical and family care leave,
• or pregnancy disability leave (Government Code
  sections 12940,12945, 12945.2).

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FEHA DEFINITIONS
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Physical Disability

• Having any physiological disease, disorder,
  condition, cosmetic disfigurement, or anatomical
  loss that affects one or more of several body
  systems and limits a major life activity.
• A physiological disease, disorder, condition,
  cosmetic disfigurement, or anatomical loss limits
  a major life activity, such as working, if it
  makes the achievement of the major life activity
  difficult.
• Physical disability also includes a any other
  health impairment that requires special education
  or related services

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History or record of a physiological conditions

• having a record or history of a disease,
  disorder, condition, cosmetic disfigurement,
  anatomical loss, or health impairment which is
  known to the employer
• and being perceived or treated by the employer as
  having any of the aforementioned conditions.

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Body Systems

• The body systems listed in FEHA include the
  following
• Neurological immunological, musculoskeletal,
  special sense organs, respiratory, including
  speech organs, cardiovascular, reproductive,
  digestive, genitourinary, hemic and lymphatic,
  skin and endocrine systems.

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Mental Disability

• 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
  activity, or having any other mental or
• psychological disorder or condition that requires
  special education or related services.

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Medical Condition

• Any health impairment related to or associated
  with a diagnosis of cancer or a record or history
  of cancer, or a genetic characteristic.
• A genetic characteristic can be a
  scientifically or medically identifiable gene or
  chromosome or an inherited characteristic that
  could statistically lead to increased development
  of a disease or disorder.
• For example, women who carry a gene established
  to statistically lead to breast cancer are
  protected under state law.
• Keep in mind, however, that Government Code
  section 12940(o) makes it an unlawful employment
  practice for an employer to subject, directly or
  indirectly, any applicant or employee, to a test
  for the presence of a genetic characteristic.

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History or Record of disorder

• An employee who has a record or history of a
  mental or psychological disorder or condition
  which is
• known to the employer,
• or who is regarded or treated by the employer as
  having a mental disorder or condition, is also
  protected.

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Excluded disorders

• It should be noted that under both physical and
  mental disability the following disorders are
  specifically excluded and are not protected under
  the FEHA
• sexual behavior disorders,
• compulsive gambling,
• kleptomania,
• pyromania,
• psychoactive substance use disorders resulting
  from the current unlawful use of controlled
  substances or other drugs

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Limits life activity

• A physiological disease, disorder, condition,
  cosmetic disfigurement, or anatomical loss limits
  a major life activity, such as working, if it
  makes the achievement of the major life activity
  difficult.

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How to File

• Must be filed within 1 year of the act of
  discrimination
• Use form provided by state
• DFEH investigates (representing the state)
• If DFEH finds evidence of discrimination the can
  file a complaint, file in court, or issue a right
  to sue letter

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Mitigating the disability

• When determining whether a person has a
  disability, an employer cannot take into
  consideration
• any medication or assistive device, such as
  wheelchairs, eyeglasses or hearing aids, that an
  employee may use to accommodate the disability.
• However, if these devices or mitigating measures
  limit a major life activity, they should be
  taken into consideration.

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REASONABLE ACCOMMODATION

• any appropriate measure that would allow the
  applicant or employee with a disability to
  perform the essential functions of the job.
• It can include making facilities accessible to
  individuals with disabilities or restructuring
  jobs, modifying work schedules, buying or
  modifying equipment, modifying examinations and
  policies, or other accommodations.
• For example, providing a keyboard rest for a
  person with carpal tunnel syndrome may qualify as
  a reasonable accommodation. A person with asthma
  may require that the lawn care be rescheduled for
  a non-business day.

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Medical Records

• In determining a disability, an employer may only
  request medical records directly
• related to the disability and need for
  accommodation. However, an applicant or an
• employee may submit a report from an independent
  medical examination before
• disqualification from employment occurs. The
  report 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.

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REMEDIES AVAILABLE UNDER FEHA

• Under the Fair Employment and Housing Act, if an
  employer fails to reasonably accommodate an
  applicant or employee, the Fair Employment and
  Housing Commission can
• order the employer to cease and desist the
  discriminatory practice
• hire or reinstate
• award actual damages including, but not limited
  to, lost wages
• emotional distress damages and administrative
  fines not to exceed 150,000.00.
• If the matter is heard in civil court, the
  damages would be unlimited.

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Sacramento County
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Disability Compliance Office
700 H Street, 5th FloorSacramento, CA
95814(916) 874-4466 Voice(916) 874-7647

• The Rehabilitation Act of 1973 requires federal
  funding recipients (such as local governments) to
  make their programs and services accessible to
  people with disabilities. In 1990, the Americans
  with Disabilities Act (ADA) was signed into law. 
  Title II is the part of the ADA which applies to
  state and local governments and contains the same
  basic prohibition on discrimination based on
  disability found in Section 504 of the
  Rehabilitation Act. 
• Additionally, in California, there are a number
  of laws that provide further protection for
  people with disabilities.  The Fair Employment
  and Housing Act (FEHA) (Gov. Code, 12900 et
  seq.) is the states primary law prohibiting
  discrimination in employment, housing and public
  accommodation.  California Code of Regulations
  (CCR) Title 24, also known as the California
  Building Standards Code, addresses architectural
  barriers that limit access for people with
  disabilities in places of public accommodation.
• The Sacramento County Disability Compliance
  Program is responsible for overseeing the
  implementation and enforcement of these federal
  and state laws and regulations that protect the
  civil rights of persons with disabilities.  The
  Disability Compliance Office assists county
  departments in making all aspects of their
  programs and services accessible to people with
  disabilities. 

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Compliance Office services for county employees

• The Disability Compliance Offices primary
  function is to support county departments and
  their employees.  It does offer some limited
  information and referral services to the
  community at large.  It is also responsible for
  providing technical assistance and staff support
  to a community advisory group, the Sacramento
  County Disability Advisory Committee to the Board
  of Supervisors, representing the disability
  community.
•          Coordinate reasonable accommodations
  for all county employees and job applicants with
  disabilities as defined by the Americans with
  Disabilities Act (ADA) and the California Fair
  Employment and Housing Act (FEHA).  A reasonable
  accommodation is a logical adjustment made to a
  job and/or the environment that enables an
  otherwise qualified person with a disability to
  perform the essential functions of their
  positions.
•          Provide information and technical
  assistance to all county agencies and departments
  to assist them in designing and implementing
  programs, policies and procedures that will bring
  the county into compliance with the ADA,
  California Code of Regulations Title 24 and other
  federal and state laws that pertain to disability
  access.
•          Train county employees on their rights
  and responsibilities under the ADA/FEHA, and
  provide information on disability sensitivity and
  inclusive workplace strategies.                   
                              

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Disability Advisory Committee

• The DAC meets the 1st Tuesday of the month,
  530-730 p.m. in Hearing Rm. 1, County
  Administration Center, 700 H Street. The
  Disability Advisory Committee (DAC) advises the
  Sacramento County Board of Supervisors on issues
  pertaining to the disability community and County
  compliance with Federal and State laws and
  regulations. The 17 members are appointed by the
  Board and are drawn from organizations serving
  people with disabilities, or from the general
  public who have an interest in and knowledge of
  disability issues. At least half of the 13 voting
  members must be persons with a disability. Four
  members are non-voting County Department
  Directors.
• DAC RESPONSIBILITIES INCLUDE
• Evaluating accessibility of County facilities,
  employment, and services
• Making recommendations for appropriate actions to
  improve accessibility
• Acting as a liaison with community groups,
  government agencies, and individuals in
  addressing disability issues related to
  Sacramento County
• Presenting educational public forums on
  disability issues

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Other accommodations

• Sacramento County and Sacramento Superior Court
  may grant accommodations to employees who do not
  meet the criteria of the ADA or FEHA.
• Employers must treated employees equitably with
  other similarly situated employees.

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SUMMARY AND REVIEW
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Is there a protected disability?

• Is the member qualified for the position or
  assignment?
• Is the member substantially limited (ADA) or
  limited (FEHA) in life activities?
• Is the member limited from work in a position
  (FEHA) or a broad classification (ADA)?
• Do they have a physical or mental disorder or
  disease?
• Do they have a protected medical condition?
• Does the employer believe they have a disability?

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The interactive process

• State law incorporates guidelines developed by
  the Equal Employment Opportunity
• Commission in defining an interactive process
  between the employer and the
• applicant or employee with a known disability.
• The guidelines include consulting with the
  individual to ascertain the precise job-related
• limitations and how they could be overcome with a
  reasonable accommodation and
• identifying potential accommodations and
  assessing their effectiveness.

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Good Faith required

• Federal courts have provided an interpretation of
  good faith, essentially stating that an
  employer and employee must communicate directly
  with each other to determine essential
  information.
• Neither party can delay or interfere with the
  process.
• To demonstrate good-faith engagement in the
  interactive process, the employer should be able
  to point to cooperative behavior that promotes
  the identification of an appropriate
  accommodation.

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Interactive Process defined

• State law incorporates guidelines developed by
  the Equal Employment Opportunity Commission in
  defining an interactive process between the
  employer and the applicant or employee with a
  known disability.
• The guidelines include consulting with the
  individual to ascertain the precise job-related
  limitations and how they could be overcome with a
  reasonable accommodation and
• identifying potential accommodations and
  assessing their effectiveness.

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Essential functions of a job

• When determining whether a job function is
  essential, the following should be taken into
  consideration
• the position exists to perform that function
• there are a limited number of employees
  available to whom the job function can be
  distributed or
• the function is highly specialized.

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More factors in deciding if a function is
essential.

• Evidence of whether a particular function is
  essential includes
• the employers judgment as to which functions
  are essential
• a written job description prepared before
  advertising or interviewing applicants for the
  job
• the amount of time spent on the job performing
  the function
• the consequences of not requiring the incumbent
  to perform the function
• The terms of a collective bargaining agreement
• the work experiences of past incumbents in the
  job
• or the current work experience of incumbents in
  similar jobs.

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Major differences in ADA and FEHA

• FEHA (State)
• Disabled if life activity (work) made difficult
• Mitigating accommodations not considered in
  determining disability (unless the accommodation
  negatively impacts a life function)
• Employer cannot discriminate because of a record
  OR history of a disorder.
• Cancer or a genetic predisposition covered
• Can be considered disabled even if only for a
  single position

• ADA (Federal)
• Disabled if substantially limited in major life
  activity
• Mitigating accommodation considered in
  determining disability
• Employer cannot discriminate because of a record
  of a disorder.
• Medical conditions not covered
• Must be disabled from a broad spectrum of classes

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What are the steps

1. Establish protected disability exists
2. Determine the essential functions of the job
3. Use good faith, interactive process
4. Determine accommodation
5. Provide accommodation
6. Appeal promptly if denied
7. Dont allow stalling by the employer
8. Call the UPE office for assistance at any step

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Enforcement

• You can file a grievance under the discrimination
  clause of the contracts.
• You can file a complaint with EEOC to enforce the
  ADA
• You can file a complaint with the DFEH to enforce
  the FEHA
• Some agencies can cross file

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A last bit

• Remember, the provisions of the FEHA are
  generally broader and cover more members.
• The employer has to comply with both ADA and FEHA
  at all times so they should be applying the rule
  that is most favorable to the member.
• Dont let the employer stall or intimidate!
• Thank you for taking the time to review this
  material.