THE NEW CALIFORNIA DISABILITY REGULATIONS

WHAT DO THEY TEACH US ABOUT ACCOMMODATING FACULTY?

Presented by

Leslie Van Houten, Senior CounselOffice of the General Counsel

April 29, 2014

Academic Business Officers Group

WHO IS COVERED BY THE DISABILITY LAWS?

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WHO IS PROTECTED BY THE DISABILITY LAWS? Both applicants for employment and employees who

are “qualified individuals” with a disability. That means they: have the requisite skill, experience, education, and other

job-related requirements for the position and can perform the essential functions of the position with or

without reasonable accommodation. All faculty members are protected regardless of their

status.

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WHAT IS A DISABILITY? Disability is broadly defined in favor of expansive

coverage. The determination of whether the individual meets

the definition of disability should not require extensive analysis.

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WHAT IS A DISABILITY? A physical or mental condition which limits a major life

activity. (Note, federal law requires a substantial limitation to a major life activity.)

A medical condition (cancer or genetic characteristic) – no requirement that it limits a major life activity.

Medical Conditions will need to be accommodated even if they do not limit a major life activity.

Persons regarded as presently disabled or who may become disabled in the future.

Persons with a history of a disability. People who associate with persons who are disabled

or perceived to be disabled.

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WHAT IS A DISABILITY? Mental Disability

Emotional or mental illness Intellectual or cognitive disability Organic brain syndrome Specific learning disabilities Autism spectrum disorders Schizophrenia Chronic or episodic conditions such as clinical depression,

bipolar disorder, PTSD, and OCD

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WHAT IS A DISABILITY? Physical Disability

Includes anatomical loss, cosmetic disfigurement, physiological disease, disorder or condition that does both of the following: Affects one or more of the following bodily systems -

neurological; immunological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; circulatory; skin; and endocrine; and

Limits a “major life activity “ (defined on next slide). Examples of physical disabilities: deafness, blindness, partially or

completely missing limbs, mobility impairments requiring the use of a wheelchair, cerebral palsy, and chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis and heart disease.

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For purposes of disability, a “major life activity” is construed broadly and includes physical, mental, and social activities, especially those life activities that affect employability or otherwise present a barrier to employment and advancement. Includes caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working;

Includes the operation of major bodily functions.

WHAT IS A DISABILITY?

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When evaluating whether someone is disabled, the effect of “mitigating measures” (other than ordinary eyeglasses or contact lenses) are not considered. Mitigating measures include treatment, therapy, or devices

that eliminate or reduce the limitation(s) of a disability. Special Education disability

Any other recognized health impairment or mental or psychological disorder that requires or has required in the past special education or related services.

May include a specific learning disability manifested by significant difficulties in the acquisition and use of listening, speaking, reading, writing, reasoning, or mathematical abilities.

WHAT IS A DISABILITY?

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A Record or History of Disability Previously having – or being misclassified as having – a record

or history of a mental or physical disability or a special education health impairment of which the employer is aware.

Perceived Disability Being regarded or treated by the employer as having – or

having had – any mental or physical condition or adverse genetic information that makes achievement of a major life activity difficult; or

Being subjected to an employment action based on an actual or perceived disability – whether or not that actual or perceived disability limits, or is perceived to limit, a major life activity.

WHAT IS A DISABILITY?

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Gambling, Kleptomania, Pyromania Psychoactive substance abuse disorders resulting from the

current unlawful use of controlled substances or other drugs. But note: The effects of past use of such substances would be

covered. Sexual behavior disorders (pedophilia, exhibitionism,

voyeurism). Mild conditions that do not limit a major life activity, as

determined on a case by case basis – e.g., common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches; and minor GI disorders.

WHAT IS NOT A DISABILITY?

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An employer must provide reasonable accommodations to qualified individuals with a disability.

An employer must engage in the interactive process when that obligation is triggered.

An employer cannot discriminate against an applicant or faculty member because of a disability – or because of a record (or history) of a disability or because of a perceived disability.

An employer cannot retaliate against a faculty member or applicant who has exercised his rights under the disability laws.

WHAT DOES THE LAW REQUIRE?

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“Qualified Individual” An applicant or faculty member who has the requisite

skill, experience, education, and other job-related requirements of the job the individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. (Green v. State of California (2007) 42 Cal.4th 254, 260.)

WHO IS A QUALIFIED INDIVIDUAL WITH A DISABILITY?

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ABOUT THE INTERACTIVE PROCESS

WHAT IS THE INTERACTIVE PROCESS (IP)?

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An ongoing dialogue between the employer and faculty member, conducted in good faith, regarding how the faculty member is limited in his ability to perform the essential functions of his position and what, if any, reasonable accommodations could enable him to perform those essential functions.

If no reasonable accommodations could enable a current faculty member to perform the essential functions of the current position, the IP then includes an exploration of whether there are alternative positions that are open for which the faculty member is qualified.

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WHAT STARTS THE INTERACTIVE PROCESS? When Faculty Member requests a reasonable accommodation

Important: Faculty member does not have to use any “magic words.”

When Employer… Knows about the disability;

This includes knowledge of a workers’ comp injury or illness. Knows or has reason to know that the faculty member is

experiencing workplace difficulties because of a disability; Knows or has reason to know that the disability prevents the faculty

member from requesting accommodations; Learns or becomes aware of the need for accommodation from a

third party; or Learns that the faculty member needs more leave after having

exhausted FML or other leaves entitlement under policies or collective bargaining agreements.

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WHO SHOULD BE INVOLVED IN THE INTERACTIVE PROCESS? For the Faculty:

Faculty member Faculty member’s representative, if applicable

For UC: Trained person leads the process – could be HR, LR,

APD, Disability Manager, Voc Rehab Officer In consultation with Campus Counsel or OGC, when

necessary Supervisor

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THE INTERACTIVE PROCESS (IP) Three Basic Steps to the IP:

Step 1: Identify the essential functions of the job Step 2: Determine the faculty member’s limitations Step 3: Explore whether faculty member’s

limitations can be reasonably accommodated

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STEP 1: IDENTIFY ESSENTIAL FUNCTIONS Essential Job Function means

The fundamental job duties of the employment position the applicant or faculty member with a disability holds or desires.

What functions are essential functions (as opposed to marginal functions)? A function may be essential because the reason the position

exists is to perform that function. A function may be essential because there is a limited number

of faculty available among whom the performance of that function can be distributed.

The function may be highly specialized, so that the incumbent in the position is hired for his/her expertise or ability to perform that particular function.

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STEP 1: IDENTIFY ESSENTIAL FUNCTIONS What can serve as evidence that a particular

function is essential? Accurate and current job description Employer’s judgment (supervisor) The amount of time spent performing that function The legitimate business consequences of not requiring the

incumbent to perform that function Job descriptions or job functions in a CBA The work experience of past incumbents in the job The current work experience of incumbents in similar jobs Reference to the importance of the performance of the job

function in prior performance reviews

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STEP 2: FACULTY MEMBER’S LIMITATIONS Determine the faculty member’s limitations

Interview the faculty member If the disability or need for accommodation is not

obvious, obtain reasonable medical information from: Treating Health Care Provider WC Medical Reports

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STEP 2: FACULTY MEMBER’S LIMITATIONS What information are we entitled to about the faculty

member’s limitations? When the disability or need for reasonable accommodation is

not obvious, the University may ask for reasonable medical documentation.

We cannot require the diagnosis or make inquiries about the underlying medical condition.

“Where necessary to advance the interactive process, reasonable medical documentation may include a description of physical or mental limitations that affect a major life activity that must be met to accommodate the [faculty member].”

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STEP 2: FACULTY MEMBER’S LIMITATIONS/DOCUMENTATIONS Required medical information. Where the existence of a disability and/or the need

for reasonable accommodation is not obvious, an employer or other covered entity may require an applicant or faculty member to obtain and provide reasonable medical documentation from a health care provider that sets forth the following information: (A) The name and credentials of the health care provider which establishes that the

individual falls within the definition of “health care provider” under section 7293.6, subdivision (i), of these regulations.

(B) That the faculty member or applicant has a physical or mental condition that limits a major life activity or a medical condition, and a description of why the faculty member or applicant needs a reasonable accommodation to have an equal opportunity: to participate in the application process and to be considered for the job, or to perform the faculty member’s job duties, or to enjoy equal benefits and privileges of employment compared to non-

disabled faculty members. The employer or other covered entity shall not ask for unrelated documentation, including in most circumstances, an applicant’s or faculty member’s complete medical records, because those records may contain information unrelated to the need for accommodation.

For medical accommodations lasting beyond one year, the University may ask for medical documentation supporting the need for continued reasonable accommodation every year.

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INSUFFICIENT MEDICAL DOCUMENTATION Documentation is insufficient if it does not:

Specify the existence of a covered disability Explain the need for reasonable accommodation “Where relevant,” provide the functional limitations If the health care provider does not have expertise to

confirm the faculty member’s disability or need for reasonable accommodation

Where other objective factors indicate that the information provided is not credible or is fraudulent

NOTE: If the medical information is insufficient, the employer must still provide the accommodation supported by medical information it has as of that date.

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STEP 2: FACULTY MEMBER’S LIMITATIONS/MEDICAL RECORDS Keep medical records:

Confidential In a secure location Separate from faculty member’s other personnel

records

Best Practice: You can share information about the faculty member’s limitations with the faculty member’s supervisor but not other medical information.

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STEP 3: REASONABLE ACCOMMODATIONS Explore whether faculty member’s limitations can

be reasonably accommodated. Consider any suggestions made by the faculty member

or her treating physician. Although we don’t typically ask the treating physician to

suggest possible accommodations, they often do and these new regulations invite them to do so.

Investigate possible accommodations. UC may choose to implement any accommodation that

would be effective for both the University and faculty member – even if it is not the accommodation preferred by the faculty member.

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THE INTERACTIVE PROCESS (IP) The IP should not end until one of the

following occurs: The faculty member has been reasonably

accommodated. It has been determined that no reasonable

accommodation exists and there is no alternative position for which the faculty member is qualified that is currently open or expected to open up.

The faculty member ends the IP by failing or refusing to participate in the IP in good faith.

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REASONABLE ACCOMMODATIONS

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DETERMINING APPROPRIATE ACCOMMODATION(S)

An employer is only obligated to implement an accommodation that is both Reasonable and Effective

An employer is not obligated to implement a reasonable accommodation that would create an “undue hardship.” However, the standard for undue hardship is very high.

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EXAMPLES OF REASONABLE ACCOMMODATION

Making existing facilities used by applicants and faculty readily accessible to and usable by people with disabilities. For example: Accessible break rooms, restrooms, training rooms Reserved parking places Acquiring or modifying furniture, equipment or devices

Transferring a faculty member to a more accessible worksite

Providing assistive aids and services, such as qualified interpreters

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EXAMPLES OF REASONABLE ACCOMMODATION Job restructuring, which may include reallocation or

redistribution of non-essential job functions Permitting an alteration of when and/or how an

essential function is performed Providing an adjustment or modification of

examinations, training materials, or policies Modifying supervisory methods (e.g., dividing

complex tasks into smaller parts) Providing additional training

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EXAMPLES OF REASONABLE ACCOMMODATION Permitting a faculty member to work from home

(telecommuting) Allowing faculty member to bring assistive animals to the

worksite Service animals Support animals – animals that provide emotional or other

support Providing a part-time or modified work schedule Providing paid or unpaid leave for treatment and recovery Reassignment to a vacant position

Note: This list is not exhaustive.

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WHAT IS NOT A REASONABLE ACCOMMODATION Eliminating an essential job function Creating a new position for the faculty member Making a light duty position permanent An accommodation that would endanger the health or

safety of the faculty member – or others Must do the IP first – can’t just assume. There must be an “imminent and substantial degree of risk”

to the faculty member or others. Failure to accommodate based on future risk is unlawful.

Decision must be based on current medical knowledge and/or best available objective evidence.

Indefinite leave – but more on this below

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A faculty member cannot be penalized for work missed during a leave taken as a reasonable accommodation. Faculty member can’t be expected to meet

performance goals or production standards that have not been adjusted to reflect the protected absence.

Likewise, faculty member can’t be penalized for not meeting attendance standards due to such a leave.

CONSIDERATIONS WHEN LEAVE IS PROVIDED AS A REASONABLE ACCOMMODATION

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According to the EEOC Guidance: In assessing undue hardship, the period of FML-

protected leave may be taken into consideration. FEHA regulations provide that a leave is a

reasonable accommodation when it is “likely to be effective in allowing the faculty member to return to work at the end of the leave, with or without reasonable accommodation, and does not create an undue hardship for the employer.”

An indefinite leave is not considered a reasonable accommodation.

CONSIDERATIONS WHEN LEAVE IS PROVIDED AS A REASONABLE ACCOMMODATION

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The perennial question: How much leave should be provided? There is no bright line rule as to how long a leave the faculty

member must provide as a reasonable accommodation so analysis is always very fact-specific. What is the leave history? Will a leave of a specific duration pose an undue hardship? Will the faculty member still be considered qualified?

When determining a baseline for what is reasonable at a location, consider: The amount of leave non-disabled faculty members are

provided. The average amount of leave provided to disabled faculty

members at your location.

CONSIDERATIONS WHEN LEAVE IS PROVIDED AS A REASONABLE ACCOMMODATION

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When in doubt: Enter into the IP to obtain information about the

nature and extent of the leave and the ability of the faculty member to return to work in the future.

Assess the impact of the continued leave of absence on the department, coupled with a lack of information about when, or if, the faculty member will return to work.

Remember: When a faculty member can work with a reasonable accommodation other than a leave of absence, the employer may not require the faculty member to take a leave.

CONSIDERATIONS WHEN LEAVE IS PROVIDED AS A REASONABLE ACCOMMODATION

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REASSIGNMENT TO AN ALTERNATIVE POSITION What positions should be considered?

Vacant (or soon to be vacant) positions for which the faculty member is qualified. Faculty member has the necessary skill, knowledge,

experience and satisfies other job-related requirements, and Faculty member can perform the essential functions with or

without reasonable accommodation.

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REASSIGNMENT TO AN ALTERNATIVE POSITION When is a transfer to a vacant position considered?

If the faculty member can no longer perform the essential functions of his or her own position even with accommodation; or

If accommodation of the essential functions of a faculty member’s own position creates an undue hardship; or

If both the employer and faculty member agree that a reassignment is preferable to being provided an accommodation in the present position; or

If a faculty member requests reassignment to gain access to medical treatment for his or her disabling condition(s) not easily accessible at the current location.

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QUESTIONS?