When the FEHA and Labor Code Collide:

Practical Tips for Reconciling California’s Disability Accommodation and Workers’

Compensation Requirements

Dan Ojeda University Counsel

CSU Office of General Counsel

dojeda@calstate.edu

The Goal: A Cohesive Team!

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Why This is on Our Radar Screen?

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Differences between WC and FEHA

• Worker’s Comp was a product of the Industrial Revolution • Created in 1913, goal was to protect workers and limit employer liability

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Differences between WC and FEHA

• WC -- no-fault mandatory insurance and benefit system

• Employers assume all liability for workplace injuries and comp benefits are the exclusive remedy for employees

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Differences between WC and FEHA

• The FEHA was a product of the civil rights movement • Protections for disabled workers were added in ‘79 and the ADA became law in ‘92

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Differences Between WC and FEHA

• Both have distinct statutory schemes – WC: Labor Code §§ 3200-6208 and C.C.R.

Title 8 – FEHA: Government Code §§ 12900-12996

and 2 C.C.R. 7293.5 et seq

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The Result: Two Ships Passing…

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Separate Yet Together…

• Need to recognize the differences between the two schemes, while coordinating our implementation of them

• This will become more important as WC and FEHA become more integrated

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Separate Yet Together KEY: Cal. Supreme Court concluded that WC does not preclude an employee from pursuing FEHA claims (City of Moorpark v. Superior Court, 18 Cal. 4th 1143 (1988))

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Recent Developments…

• One of the last acts of the FEHC was to amend the FEHA disability regulations

• The revisions directly link WC and FEHA

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Recent Developments…

2 CCR § 7294.0 requires employer to initiate the interactive process if:

– an employee has exhausted WC and FMLA leave; – further recuperative leave is still necessary for the

employee to perform the essential functions of the job

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Communicating Between WC and EEO

• Share information regarding EE’s medical condition • WC file may have medical info that conflicts with notes in EEO file

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Communicating Between WC and EEO

• Labor Code § 3762(c): A claims administrator may disclose the following employee medical information to an employer: – the diagnosis for which WC is claimed, – the treatment provided for the condition, and – information necessary to modify employee’s work

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Communicating Between WC and EEO

Rowe v. City & County of San Francisco, 186 F.Supp.2d 1047 (N.D.Cal.2002): the court, citing § 3762(c)(2), stated the employer "has the ability to review an employee's record for more information concerning the employee's medical condition in determining whether she possesses a disability and requires an accommodation."

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Communicating Between WC and EEO

But Note: New FEHA regs prohibit asking employee to disclose the underlying medical cause of the disability (2 CCR § 7294.0)

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: Communication

• General Rule: Employers should conduct the interactive process in a personal meeting with the employee

(Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000))

• Participants should include the employee, the person most knowledgeable about the employee’s job, and a human resources representative

• WC lawyers and reps can participate in the interactive process, but it’s not required

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: Communication

• Employer should take notes during the meeting and summarize the discussion in writing afterward

• Employer should keep a log of all interactive process meetings

• Status of interactive process and WC case should be shared on an ongoing basis

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: Communication

• Leaves provided in WC case may be sufficient accommodations for FEHA/ADA too

• Consider global settlements that resolve the FEHA and WC claims – LC § 2804: employee’s cannot waive WC claims in

a settlement agreement, but parties can agree to terms of WC settlement and seek WCAB approval

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Navigating Stress Claims •

Hey, doesn’t work stress everyone out? I never file a claim!!!!

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Navigating Stress Claims - WC

• If stress results from actual employment events, can be compensable…but

• An employer is not required to compensate for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action (San Bernardino v. WCAB,

203. C.A.4th 1469 (2013))

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Navigating Stress Claims - FEHA

• Stress can be a disability if it impacts a major life activity…, but

• The inability to get along with one's supervisor does not constitute a qualified disability …. ( Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 628, disapproved on other grounds; Schneiker v. Fortis Ins. (7th. Cir. 2000) 200 F.3d 1055)

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Navigating Stress Claims - FEHA Case Study: Adams v. Sutter Medical, 2007 WL 2834551 (3d. District CA unpublished)

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Navigating Stress Claims

• Adams worked as marketing coordinator • Took leave for knee surgery and stress • She worked for 13 years before Eckardt

became her supervisor • Had problems with Eckardt from the

beginning

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Navigating Stress Claims

• She was given several warnings and a PIP, before being put on probation

• Her severe stress started at that time • She filed a WC claim and went out on leave for

knee surgery and stress • She was cleared to return from her knee injury

but not her ongoing stress

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Navigating Stress Claims

• Adams testified that stress would have subsided if Eckardt wasn’t her supervisor

• She claimed she couldn’t work for Eckardt • She was fired before she was cleared to return • Ct. held: no disability discrimination. The

inability to work for a particular supervisor does not constitute a disability under FEHA

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: Stress Claims

• Don’t assume all stress claims are covered • Determine the cause of the stress • Determine the work limitations • If injury is connected to work, share info

between EEO and WC departments • If there is a valid disability, engage in the

interactive process 27

Return to Work Issues

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Return to Work: WC

• Employer does not violate Section 132a if it terminates employee based on the reasonable belief that the employee cannot perform the customary work without risk of further injury to himself or others

• A reasonable fear of re-injury must be supported by a medical opinion

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Return to Work: FEHA

An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship (EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act)

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Return to Work: FEHA

• An employer can assert the defense that “an individual poses a direct threat to the health or safety of other individuals in the workplace”

• The “direct threat” defense has been narrowly construed by the courts

• Employers must have an objectively reasonable basis for the defense based on objective, scientific information

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Return to Work: FEHA

• “Direct threat” requires that the employee face an “imminent and substantial degree of risk” in performing the essential functions of the job

• Protecting an employee from harm that is merely potential is not enough

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Return to Work: CSU

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Return to Work: CSU

• Ed. Code § 89536 authorizes dismissal of an employee who is medically unfit for service and is not vested

• This is a medical discharge and is subject to SPB review

• The employee can also challenge a medical discharge under FEHA

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Return to Work: CSU

Ed. Code § 89536.1. (a): • If the employee cannot work due to a medical

condition and is vested, the CSU may not discharge the employee

• If the employee refuses to file for disability retirement, the CSU must do so

• If PERS rejects the retirement application, the employee is entitled to return to work

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:Return to Work

• Contact the injured employee and start the

interactive process – face to face • Determine essential functions and job duties • Obtain work capacities and restrictions

– Get sufficient medical information, including 2d opinion if necessary

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: Return to Work

• Discuss and evaluate possible reasonable

accommodations – Always consider employees’ suggestions

• Select a reasonable accommodation and make an offer to employee

• Implement and monitor the accommodation

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: Return to Work

• Always document what happens during the

I.P. and send meeting summaries to employee • If employee disagrees with the proposal and

remains out of work, must consider medical discharge and disability retirement options

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