Medical Accommodations Disability discrimination

PROHIBITING DISABILITY DISCRIMINATION IN EMPLOYMENT

UPE, Local #1 Stewards Council

August 2005

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

THE ADA

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

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 day to day by people with disabilities.

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

It is illegal to discriminate because an employee complains of discrimination

Filing a charge of discriminationParticipating in an investigationOpposing discriminatory practices.

ADA DEFINITIONS

“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.

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.

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

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."

“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.

“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.

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.

Production standards

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

“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.

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.

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

“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.

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.

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

1301 Clay Street Suite 1170-N Oakland, CA 94612-5217

Phone:510-637-3230 Fax:510-637-3235TTY:510-637-3234

Director:Joyce Hendy Office Hours: Monday - Friday from 8:00 a.m.

- 4:30 p.m. Please call first to obtain information or schedule an appointment.

FEHA

Fair Employment and Housing Act

What is the FEHA?

Fair Employment and Housing Act first passed in 1974

Enforced by California DFEH Broader in scope than ADA

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.

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.

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

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).

FEHA DEFINITIONS

“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;

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.

“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.

“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.

“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.

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.

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

“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.

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

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.

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.

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.

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.

Sacramento County

Disability Compliance Office

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 state’s 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. 

700 H Street, 5th FloorSacramento, CA 95814(916) 874-4466 Voice(916) 874-7647

Compliance Office – services for county employees

The Disability Compliance Office’s 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.                                               

Disability Advisory Committee

The DAC meets the 1st Tuesday of the month, 5:30-7:30 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

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.

SUMMARY AND REVIEW

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?

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.

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.

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.

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.

More factors in deciding if a function is ‘essential.”

Evidence of whether a particular function is “essential” includes:

the employer’s 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.

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

What are the steps

1. Establish protected disability exists2. Determine the essential functions of the job3. Use good faith, interactive process4. Determine accommodation5. Provide accommodation6. Appeal promptly if denied7. Don’t allow stalling by the employer8. Call the UPE office for assistance at any step

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”

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.

Don’t let the employer stall or intimidate! Thank you for taking the time to review this

material.