Employees of a vast majority of California employers who have an injury or condition that affects one or more of their major life activities are members of a protected class of persons. The Fair Employment and Housing Act (FEHA) requires that protected class disabled persons be treated in certain defined ways. A failure to follow FEHA proscriptions can result in significant employer liability, even if the employer is acting in good faith and without knowledge of its wrongdoing.
FEHA obligations exist independent of other statutory and common law employer obligations such as the Worker’s Compensation (WC) laws, the Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and laws associated with employees who need leave for various reasons. It is the intersection and overlap of these laws that either mislead and confuse employers and their counselors or give those same persons plausible bases for engaging in unlawful conduct. While understanding how each of the interrelated laws fit together with FEHA is somewhat complex, it is neither impossible nor unreasonably difficult to comprehend. It is every employer’s responsibility to protect its employees from disability discrimination, harassment, and retaliation, so hard or not, the employer must make the effort and take the time to fully understand how its FEHA obligations are affected by the other disability and leave-related obligations.
However, my experience as a disability discrimination litigator is that many employers, big and small, have either failed to understand their FEHA obligations or have brazenly determined to avoid them. In this article, I identify the ten most common employer violations I see being perpetrated with the hope that employers can see the gaps in their practices, and if not, that attorneys representing clients who have been injured, such as personal injury or workers compensation counsel, can better recognize a FEHA violation when they see it.
California’s FEHA’s disability-related provisions apply to almost all employers that employ 5 or more employees in this state. The California FEHA statute, Government Code section 12940, defines several unlawful employment practices. With regard to disabled persons, some of the more commonly invoked provisions include a prohibition against discrimination on the basis of a physical or mental disability or medical condition (12940(a)), a prohibition against retaliation for opposing any practices forbidden under FEHA (12940(h)), a prohibition against harassment (12940(j)), a prohibition against failing to take reasonable steps necessary to prevent discrimination and harassment from occurring (12940(k)), a prohibition against failing to make reasonable accommodation for a known disability (12940(m)), and a prohibition against failing to engage in a timely good faith interactive process with an employee who seeks a reasonable accommodation (12940(n)). Case law and administrative regulations have further defined these obligations giving employers who want to know precisely how to administer them guidance. Nonetheless, particular violations of FEHA seem to occur with some regularity. The ten most common disability-related violations of FEHA that I see occurring related to California employees are listed below in no particular order of frequency.
Common Violation Number One: The TTD Misapplication
In the WC system, an employee is entitled to temporary disability benefits if the injury is work-related and a doctor certifies that the employee is either TTD or TPD. TTD is short for the WC term-of-art Temporarily Totally Disabled. TPD is short for Temporarily Partially Disabled. Unfortunately, employers and their WC adjusters, and even applicants’ attorneys, regularly apply a common dictionary definition to these terms-of-art. As such, when any of the WC doctors find an injured employee to be TTD, the employer believes the employee is totally disabled in all senses of the word. This is a critical mistake when it comes to the application of FEHA.
An employer’s obligations under FEHA exist regardless of the employee’s classification in the WC system. Recent case law has clarified that even an employee classified as 100% totally permanently disabled can and should be accommodated if doing so would not constitute an undue hardship to the employer. (Cuiellette v. City of Los Angeles(2011) 194 Cal.App.4th 757, 772). Depending on the nature of the injury or condition that has caused the employee to be classified as temporarily totally disabled, there are many situations where one so labeled could still be part of the productive workforce if properly accommodated by modifying their job or their workspace or by introducing practical technology to assist them.
However, on several different occasions, I have been told in depositions and in trial by employers or their WC adjusters who have advised them, that they believed they had no obligation whatsoever under the FEHA until the employee was no longer TTD. Their stated reason: because the employee is totally disabled, the employee obviously cannot work. Fundamentally, these employers and their counselors are allowing the WC term-of-art to influence their thinking about their FEHA obligations. This can be a very expensive mistake.
Whether an employee is TTD, TPD or even PTD (permanently totally disabled), the employer has an obligation under FEHA to engage in a timely good faith interactive process and reasonably accommodate the disabled employee so long as such accommodation does not constitute an undue hardship on the employer. Failure to do so violates FEHA.
Common Violation Number Two: The �No Light Duty� Deflection
Often an employee suffers an injury or condition that results in certain physical restrictions upon the employee’s ability to return to work. Those restrictions may be limitations on their ability to lift certain weights, or to repetitively push or pull or bend or twist. The employee may be required to stand or sit or walk around from time to time. Sometimes the doctor even makes an express remark that the employee is released to light duty work only. A common response by employers is that we do not offer light duty work, foreclosing any ability by the employee to return to the work force until most if not all of the restrictions are removed. A rote, across-the-board policy to make such a response is a violation of FEHA.
The law requires that the employer engage in a timely good faith interactive process when presented with a request for accommodation. (Gov. Code, 12940, subd. (n).) Presentation of a return to work note from a doctor with restrictions is often sufficient to constitute a request for accommodation. The interactive process contemplates a case-by-case interaction between the employee and the employer whereby several things must occur. Primarily the process is to interactively review and understand the employee’s restrictions and compare them to the employee’s job or other jobs available, and to determine if there is a way to accommodate those restrictions. (29 C.F.R. 1630.2(o)(3).) The only practical limitation in this process is that the accommodation must not constitute an undue hardship to the employer, which can only be determined by a detailed analysis of the financial and other costs in providing the accommodation. (Gov. Code, 12940, subd. (m).)
The employer cannot shortcut these required processes by simply stating we do not offer light duty work. In fact, such a statement may well be an admission that the employer never considered modifying an employee’s job description or job placement a direct violation of its duties under FEHA. Any employer refusal to allow an employee to return to work with restrictions because the employer does not offer light duty work should be considered a red flag that the employee’s FEHA rights are being violated.
Common Violation Number Three: FMLA/CFRA Blinders
The FMLA and CFRA are very similar leave laws, both enforceable in California. They place duties on employers to grant leave to employees for personal and family medical and other issues. Both provide that qualifying employees are entitled to up to 12 weeks of leave per year for qualifying conditions. Because both grant leaves for the employee’s own medical needs, they intersect with the employer’s obligations under FEHA.
Most employers have a strong understanding of their FMLA/CFRA obligations. They have standardized policies, procedures and forms to make sure the required notices and leaves are handled according to the federal and state laws governing those statutory schemes. However, it appears to be very common that those same employers, very large ones in some cases, wear FMLA/CFRA blinders, meaning they see their obligations related to medical leaves as exclusively dictated by those two statutes and nothing more. Time and again, I see large employers and small ones send letters terminating their disabled employees because they have exhausted their FMLA/CFRA leave and are yet unable to return to work. This is another costly mistake.
FEHA is not trumped by the FMLA or CFRA. Instead, FEHA acts as a kind of safety net that underlies those statutory schemes. Once an employee exhausts his or her designated FMLA/CFRA leave, the employer’s obligations under FEHA to engage in the timely good faith interactive process and to provide a reasonable accommodation still exist. If the employee needs more unpaid leave to recuperate or needs to be accommodated to be allowed to return to work with restrictions, FEHA requires the employer explore those alternatives. It is a violation of FEHA to terminate an employee simply because they have exhausted their FMLA/CFRA leave and need more time to heal or recover where granting that additional unpaid leave time would not be an undue hardship.
Common Violation Number Four: Termination Deadlines
A similar yet different violation occurs when employers enforce an across-the-board policy that terminates employees who are off work for a specifically defined period of time. For instance, I have come across several very large corporate employers who have a one-year limitation on leaves, meaning that if the employee is not back to work within one year of the start of their disability leave, they are terminated. Uniformly enforcing such a policy will violate FEHA for many employees who simply need some additional unpaid leave to finish their healing, and such unpaid leave would not constitute an undue hardship on the employer. As much as employers would like to create clear black and white policies to enforce across the board, FEHA requires employers to look at each disabled employee’s issues interactively with that employee on a case-by-case basis, which cannot be done through a uniformly enforced leave deadline policy.
Common Violation Number Five: �No Restrictions� Policies
Whether concerned about the possibility that an employee returning with some restrictions might further injure themselves (creating exposure to more work-related injuries affecting WC premiums), or because accommodating restrictions is costly or inconvenient, many employers maintain and enforce a no restrictions policy. A no restrictions policy is simply a refusal to take an employee back unless and until they present a return to work form from the doctor that has no restrictions whatsoever on the employee’s ability to perform their work functions. Refusing to take an employee back to work based on a no restrictions policy violates that employee’s rights under FEHA if the stated restrictions could be accommodated without undue hardship on the employer. Thus, in many situations, a no restrictions policy will subject the employer to significant liability for violating FEHA. In fact, similar to the no light duty work position, asserting a no restrictions policy is likely an admission of the employer’s refusal to engage in the timely good faith interactive process and refusal to consider reasonable accommodations.
Common Violation Number Six: Withdrawal of Accommodations Already Proven to be Reasonable
The next common violation never ceases to amaze me. An employer will start out doing the right thing by accommodating certain restrictions set forth in a return to work form from the employee’s doctor. Then something occurs that indicates that the employee will likely not improve any further, like the publication of an Agreed Medical Examiner’s (AME) Report stating that the employee’s condition is permanent and stationary (P&S). At that point, faced with permanent restrictions, the employer, who had been accommodating the same restrictions for a significant period of time, removes the employee from that job and indicates there is no work available given the permanent restrictions. In most of these cases, this is a violation of FEHA.
At the time the employer receives notice that the temporary restrictions have become permanent restrictions, its duty remains the same. It is required to reasonably accommodate the permanent restrictions so long as doing so would not constitute an undue hardship. However, the fact that the employer was able to accommodate the employee with identical temporary restrictions for a significant period of time establishes that there is a reasonable accommodation available. The only way the employer could legitimately remove an employee from the job they had been doing for some time with identical restrictions would be if it could prove that long-term accommodation of the sort already proven to work would somehow constitute an undue hardship even though short-term accommodation, in the same manner, was not. This is usually highly unlikely.
Common Violation Number Seven: Complete Absence of any Interactive Process
While this violation goes hand-in-hand with several of the above-identified violations, it is also a stand-alone problem. Many employers simply ignore the statutory requirement to interactively work with an employee who has certain restrictions on their ability to perform all the functions of their job. In fact, it is shocking to time and again depose employer HR personnel who have never even heard of the term timely good faith interactive process.
FEHA requires an employer to engage in this process whenever the employee requests an accommodation. Many employers see this request requirement as a magic word obligation, meaning that they believe they are not required to engage in the interactive process unless and until the employee specifically asks for a reasonable accommodation. This narrow interpretation of the statute can be another costly mistake.
FEHA does not require an employee to specifically use particular words or phrases to trigger the employer’s duty to engage in the interactive process. Instead, the employer’s obligation to engage interactively with the employee is invoked by something as simple as a request to return to work after having provided the employer with a list of restrictions, or a request for some additional time off to heal. A failure to engage in a timely good faith interactive process can be an independent basis for liability under FEHA. Yet, many employers still do not understand their obligations to engage in that process.
Common Violation Number Eight: Employer-Created Ambiguities That Hold Up Returning Employees to Work
Some employers employ a fairly sophisticated approach to avoiding liability for refusing to allow an employee to return to work. Those employers use ambiguity as a tool. They strive mightily to create and maintain questions that keep the employee running back and forth to the doctor to continue to get clarifications and answers to questions that tend to never be enough for the employer. All the while, the employer is disguising this ploy by making statements that they are simply trying to understand and work with the employee through an interactive process trying to make it look to outside, uneducated observers that they are diligently trying to carry out their obligations under FEHA. However, it is often a ruse keeping the employee in a no-man’s-land for significant periods of time, often without any way to provide for their financial needs. The employer’s hope: the employee will simply find other employment as they become frustrated with the inability to get back to work and earn money.
The ploy works unless it is recognized that the interactive process was never intended to be a basis for significant delay. Instead, it is intended to be, if necessary, a knees-under-the-table process that requires actual interaction, not simply an exchange of one letter after another. It involves intent to find solutions, not simply the identification of problems or issues the employee must solve. Sophisticated or not, it is a violation of FEHA to use the interactive process to create a significant delay. To be an acceptable timely good faith interactive process, it has to be both timely and performed in good faith, i.e., with the intent intended by the legislators who created the duty. The employer violates FEHA if it institutes a process that is neither timely nor in good faith.
Common Violation Number Nine: Reliance on Job Description Portions Inapplicable to Actual Job
Another common violation by employers relates to job descriptions created for certain positions. Those descriptions often state physical requirements for the job, such as the ability to lift certain amounts of weight and the number of times such lifting might be required. For instance, a job description might indicate that the employee should be able to lift 40+ pounds never, 30+ pounds rarely, 20+ pounds occasionally, and 10+ pounds often. The common violation occurs when the employee seeks to return to work with restrictions that may technically conflict with the job description, but the job description states a requirement that is not actually implicated by the employee’s job.
For instance, using the prior example, the employee presents the employer with a return to work form from their doctor with a limitation that the employee should not lift more than 30 pounds, and the employer refuses to allow the employee to return to their job because the official job description requires that the employee be required to rarely lift 30+ pounds. If the actual performance of the employee’s job has never required the employee to lift 30 or more pounds, making the job description inaccurate, it would be a violation of FEHA for the employer to flatly rely on an inaccurate job description to deny the employee his or her return to work. Under this scenario, the employer should accommodate the employee by modifying or correcting the job description to match the actual job duties. Even if the job description accurately described a rare or occasional requirement for the employee to do something in violation of their restrictions, employers must still reasonably accommodate the conflict by modifying the job, or the method of performing the task, or the jobs of those around the disabled employee, so long as such measures do not constitute an undue hardship. One of the easiest accommodations available to an employer is to modify a job description that conflicts with a restriction where the description does not accurately state the employee’s actual job requirement. A failure to do so is a violation of FEHA.
Common Violation Number Ten: Claiming Undue Hardship Where No Analysis Has Been Performed
Throughout this article, it should have become clear that one of the primary defenses an employer can make in refusing to accommodate an employee’s restrictions is where any reasonable accommodation would constitute an undue hardship. However, it is the employer’s failure to apply the proper standards to this defense which constitutes the tenth common violation of FEHA. The violations here come in two distinct forms: The failure to apply the proper level of hardship to the accommodation at issue, or the failure to engage in any real evaluation of the hardship to the company and simply stating undue hardship based on assumption or hutzpah.
Undue hardship is not an inconvenience, or difficulty, or cost, or some effect on other employees, without more. Undue hardship is a fact-specific analysis which concludes that a particular accommodation would require significant difficulty or expense, when considered in light of several factors. Examples of reasonable accommodations that have been considered not an undue hardship include extension of finite unpaid leave to complete healing or complete recovery (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226), allowing telecommunication or working from home (See, e.g., Chan v. Sprint Corp. (D. Kansas 2005) 351 F.Supp.2d 1197, 1207), transferring the employee to a vacant position (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972-973), giving the disabled employee preference over non-disabled employees in reassignments (Jensen, supra, 85 Cal.App.4th at page 265), and, depending on the size of the particular employer, upwards of several thousand dollars to modify workspaces or provide tools, technology or physical assistance to the disabled employee. The threshold for a determination of what is truly undue hardship under the FEHA disability laws analysis is relatively high. It is a violation of FEHA to claim an accommodation creates an undue hardship if in reality the accommodation is just different from the normal, or requires simple departure from established practices or policies.
Because the determination of undue hardship requires an analysis of cost, disruption and other hardship to the employer, it is similarly a violation of FEHA to take such a position before actually engaging in that analysis. (See, 29 C.F.R. Part 1630 Appen. 1630.15(d); see also U.S. v. City & Co. of Denver (D. Colo. 1996) 943 F.Supp. 1304, 1312.) So, often employers have taken the position that certain accommodations would constitute an undue hardship, when it is later learned that no one at the company actually evaluated the costs and the effects of the accommodation on the business. In most cases, simply asserting undue hardship without first engaging in a good faith analysis of the proposed accommodation will be a violation of FEHA.
Employers violate the disability-related provisions of FEHA in dozens of other ways, but those identified herein seem to occur more often than others. A violation of FEHA can result in liability for lost income, emotional distress damages, payment of the employee’s attorney fees and even punitive damages. Thus, the prudent employer should devote as much attention to its obligations under FEHA as most do to their obligations under the FMLA and CFRA.
For those attorneys who regularly work with clients who suffer injuries or conditions that affect their ability to perform their regular occupation, it is important to recognize red flags that raise the specter of employer FEHA violations. Not only will that recognition allow you to inform your clients about other important rights they may possess, but you can also tread carefully to avoid adversely affecting those rights in your representation of the client.
Until more employers spend the time and money necessary to fully understand the interaction of FEHA with the other disability-related laws out there, they will continue to regularly violate employees’ rights to be returned to the productive work force, thereby creating substantial employer exposures.
Neil Pedersen is the principal of Pedersen Heck McQueen APLC, a firm that represents employees who have been subjected to workplace harassment, retaliation and discrimination. More than half of Neil’s employment law practice presently involves disability discrimination claims. Neil, a 22-plus year litigator, also teaches Employment Law at Western State College of Law. He can be contacted by phone at (949) 260-1181, or by email at [email protected] Copyright 2012 by Neil Pedersen. All rights reserved.
29 CFR Part 825.701(a) was promulgated to assist in the enforcement of the FMLA. It provides i[n]othing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA. The California Code of Regulations, promulgated to assist in administration of the CFRA incorporates the statement in Part 825 quoted above: “The definitions in the federal regulations issued January 6, 1995 (29 CFR Part 825), interpreting the Family and Medical Leave Act of 1993 (FMLA)shall also apply to this subchapter to the extent they are not inconsistent with the following definitions.” Similarly, California Code of Regulations 7297.10 further provides: “[t]o the extent that they are not inconsistent with this subchapter, other state law or the California Constitution, the Commission incorporates by reference the federal regulations interpreting FMLA issued January 6, 1995 (29 CFR Part 825), which govern any FMLA leave which is also a leave under this subchapter.
(See, e.g., Smith v. Midland Brake, Inc. (10th Cir. 1999) 180 F.3d 1154, 1171-1172; Fjellestad v. Pizza Hut of America, Inc. (8th Cir. 1999) 188 F.3d 944, 955, fn. 5; Taylor v. Phoenixville School Dist. (3d Cir. 1999) 184 F.3d 296, 313.) In fact, where the employer has knowledge of an employee’s disability and possible need for accommodation, the employer may be required to initiate the interactive process even absent a request from the employee. (Norris v. Allied-Sysco Food Services, Inc. (N.D. Cal. 1996) 948 F.Supp. 1418, 1436; Felix v. New York City Transit Authority (S.D. N.Y. 2001) 154 F.Supp.2d 640, 657.)
The factors to be considered in the undue hardship analysis are stated as follows: (1) The nature and cost of the accommodation needed, (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility, (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities, (4) The type of operations, including the composition, structure, and functions of the workforce of the entity, (5) The geographic separateness, administrative, or fiscal relationship of the facility or facilities. (Gov. Code, 12926, subd. (t); 2 Cal. Code Regs., 7293.9, subd. (b).)
From Workers Compensation Quarterly, Vol.26, No.1, 2013