The new regulations expand the scope of pregnancy related conditions that can entitle an employee to a transfer, leave, or reasonable accommodation, should a healthcare professional so recommend.  Although not intended to be exhaustive, the pregnancy related conditions that may require accommodation of a pregnant employee include: lactation, severe morning sickness, prenatal care, postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, postpartum depression, childbirth, loss of pregnancy, and end of pregnancy.

The new regulations also clarify the amount of leave an employee disabled by her pregnancy is eligible for, and how leave time used is to be counted.  For example, the regulations provide that pregnant employees are eligible for up to four months (or 17⅓ weeks) of pregnancy disability leave per pregnancy, not four months per year.  Plus, in an attempt to make it easier to calculate intermittent leave, the definition of four months is now to be counted down to the hour. Leave must be accounted for in the smallest increment offered for any other type of leave, but never deducted in increments larger than one hour. For example, if the smallest increment of leave an employer uses is one hour, then an employee who takes off 1.5 hours for a prenatal care appointment can be charged for two hours of leave. However, if the smallest increment the employer uses is one-half hour, then the leave entitlement can only be reduced by 1.5 hours.

The new regulations also add a “perceived pregnancy” definition which impacts the definition of “because of pregnancy.”  As a result, an employer cannot refuse to hire an applicant because of pregnancy or because of perceived pregnancy.  However, an employee is not entitled to a leave or reasonable accommodation because the employer perceived her to be pregnant when she was not.  In fact, the employee has to be entitled to a reasonable accommodation or leave “because of” pregnancy.

Employers should analyze and update their leave and disability/reasonable accommodation policies to ensure compliance with these new regulations. 

In James, the plaintiffs were severely disabled individuals who had prescriptions for medical marijuana to alleviate chronic pain. The cities of Costa Mesa and Lake Forest enacted ordinances to close marijuana dispensing facilities operating within their boundaries. As a result, the plaintiffs brought suit against Costa Mesa and Lake Forest, alleging that the anticipated closures of the marijuana dispensaries would violate Title II of the Americans with Disabilities Act (“ADA” or “Title II”).

ADA prohibits public entities from denying the benefit of public services to any “qualified individual with a disability.” The plaintiffs alleged that, by interfering with their access to medical marijuana, Costa Mesa and Lake Forest had effectively prevented them from accessing public services in violation of Title II.

The Court looked to the ADA’s language to determine who is entitled to protection.    Under the ADA, the term “individual with a disability” does not include an individual who is currently engaging in illegal use of drugs. The ADA defines “illegal use of drugs,” as “the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act.”

Although medical marijuana use remains illegal under the federal Controlled Substances Act, the ADA has an exception that applies to "use of a drug taken under supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of federal law." Plaintiffs argued that their medical marijuana use fell within the exception for drug use supervised by a licensed health care professional.

The Ninth Circuit disagreed and held that plaintiffs’ medical marijuana use was not protected by the ADA because the exception to the exclusion for illegal drugs use requires that the drug use must both be "under supervision" and "be authorized by . . . federal law."  The Court noted in its analysis that a contrary interpretation of the exception for “use of a drug taken under supervision by a licensed health care professional” would allow a doctor to recommend the use of any controlled substance – including cocaine or heroin – and thereby enable the drug user to avoid the ADA’s illegal drug exclusion.  Because marijuana use is not authorized by federal law, the Court held that Costa Mesa and Lake Forest’s closure of marijuana dispensaries did not violate the ADA.

Although the James case is not an employment law case, it reinforces public employers’ ability to discipline employees who test positive for medical marijuana.  The James case strengthens the holding in Ross, in which the California Supreme Court held that use of medical marijuana in violation of an employer’s policies can lead to disciplinary action even if the employee has a prescription for such use.  If the James court had held that the plaintiffs were protected as individuals with disabilities under the ADA, this could have complicated the ability of employers to discipline those employees who test positive for medical marijuana because those employees would now be qualified as “disabled” under the ADA. 

In Samper v. Providence St. Vincent Medical Center, Monika Samper was a part-time nurse in a hospital’s neo-natal intensive care unit (NICU). NICU nurses provide a high level of hands-on, intensive care to premature infants.  Special training is required for this job.  The Hospital’s attendance policy allowed employees to take up to five unplanned absences during a 12-month period.  Samper had attendance problems for several years.  

In 2005, Samper was diagnosed with fibromyalgia and her attendance problems grew worse. The Hospital engaged in the interactive process with Samper and agreed to a highly flexible accommodation: Samper was allowed to call in when having a bad health day, and to move her shift to another day in the week without finding someone to cover her shift. However, her attendance problems persisted.  As another form of reasonable accommodation, the Hospital then agreed not to schedule Samper’s two shifts per week on consecutive days.  Remarkably, Samper’s attendance still did not improve.  Samper ended up requesting an exemption from the attendance policy altogether.  The Hospital refused this accommodation request and eventually terminated her employment.  

Samper sued the Hospital in Federal court for allegedly failing to reasonably accommodate her in violation of the Americans with Disabilities Act (ADA).  To be successful in bringing a claim for failure to accommodate a disability, Samper would have had to show, among other things, that she was a qualified individual who was able to perform the essential functions of the job with or without reasonable accommodation. 

Perhaps surprisingly, attendance is not always going to be deemed an essential job function.  The Court draws a distinction between jobs that require attendance at the jobsite and jobs that do not require on-site attendance.  On-site attendance can be an essential job function if: (1) the employee must work as part of a team; (2) the job requires face-to-face interaction with clients and other employees; or (3) the job requires the employee to work with items and equipment kept on the work site.  

Here, the Ninth Circuit found that Samper’s request for an exemption from the attendance policy far exceeded the realm of reasonableness.  The Court reasoned that a NICU nurse’s attendance is an essential job function for all three reasons:  Samper’s job required teamwork with other NICU nurses, interaction with co-workers and patients, and access to medical equipment. Moreover, the job description for the position emphasized the need for regular attendance and punctuality, especially given the challenge of finding replacements for these specialized nurse positions.  The Court held that Samper’s request to be absent as much as she wanted to was not a reasonable accommodation that would allow her to perform her essential job functions, but rather it would exempt her from the essential job function of regular attendance. 

This case gives public employers guidance regarding when attendance can be considered an essential job function. Specifically, attendance is an essential job function when one or more of the three factors listed above is present.  Consequently, even if an employee’s disability is the cause of absences, an employer does not have to exempt an employee from an attendance policy if the essential job duties necessitate that the employee regularly report to a workplace.  Employers should consider the three factors to determine whether attendance is indeed an essential function of a job and then update job descriptions to reflect this.

Here are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective.  This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.  

1.         Utilize Accurate Job Descriptions:  At the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions.  These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship.  An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related.  Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical.  Under both federal and state law, a Court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what are essential functions. 

Detail in the job description can be very important also, because vague or overly general job descriptions can fail to give proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions.  Misunderstanding about the nature of the job can produce charges of discrimination or of failure to accommodate.  At a minimum, a job description should contain: (a) job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation.  Where possible, job requirements should be validated by experts using professionally accepted validation methods.  

2.         Establish a Uniform Screening Process for Applications:  The next phase to consider is the initial “screen” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants.  As a general matter, an employer’s initial “screen” must be conducted in a neutral manner that does not result in an unjustifiable, disproportionate impact with regard to a protected characteristic, e.g. race, gender, religion, age over 40, etc.  Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job.  The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed, and to confirm that decisions were not influenced by improper considerations. 

3.         Focus Interviews on Job-Related Questions, and Avoid Improper Questions:  Like other aspects of the hiring process, interviews must be non-discriminatory.  Questions should focus on qualifications for the job in question, and not pertain to protected characteristics.  The California Department of Fair Employment and Housing has promulgated a list of questions that cannot be asked in an interview.  Some unlawful questions are straightforward, such as asking about an applicant’s race, age, religion, or other protected characteristics.  But the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace.  (The list of questions is available at: http://www.dfeh.ca.gov/res/docs/publications/dfeh-161.pdf.)  The FEHA publication lists how questions can be phrased in a way that requests information the employer legitimately needs without creating an impression of bias.  (For example, it would be appropriate to ask which languages an applicant speaks, if relevant to the job at issue.) 

It is vital that agencies ensure that those employees conducting interviews have received training in what are protected classifications, and what questions are prohibited – and of course those conducting interviews should have become thoroughly familiar with the job description and nature of the job in question.  

An important step in the background investigation process is obtaining a signed waiver and authorization from each selected applicant.  The waiver/authorization should inform the applicant of the types of information the agency will request from former or current employers.  It should also require the applicant to release the agency and current or former employers from liability arising from the background investigation.  The document can also require the applicant to authorize access to, and/or to require the applicant to obtain a copy of, the applicant’s personnel file from prior employers.  It may be appropriate for the investigator actually to meet with the applicant to explain the process and make sure the applicant fully understands what types of information the agency will seek. 

5.         Separate Out Pre-Offer and Post-Offer Questions:  Generally, under both federal and state law, employers cannot ask questions about disabilities or require medical examinations prior to making a conditional offer of employment.  The EEOC has described that a “conditional offer of employment” is a real job offer that is made after the employer has evaluated all relevant non-medical information which could reasonably have been obtained and analyzed prior to making the offer.  The offer is conditioned upon acceptable medical information, such as passing a physical or psychological examination that is directly related to job performance and business necessity.  Typically, for a conditional job offer to be a “real” offer, an employer cannot conduct medical examinations or otherwise elicit medical information until after the employer has evaluated all non-medical information, and offered employment subject only to the medical exam.  

Agencies should audit their practices to ensure they comply with these requirements.  In the case of peace officers, agencies can sometimes make conditional offers before some types of non-medical evidence (i.e., background checks) are in, if the evidence cannot reasonably have been collected earlier, but that is an exception to the general rule.  In addition, the agency should be able to prove that the medical inquiries it makes post-offer (including psychological evaluations, which are often conducted for public safety positions), are in fact necessary for determining whether the applicant can perform the job. 

6.         Rejection of Applicants Based on Results of Medical Examination:  If an agency rejects an applicant based on the results of a medical examination, it must be prepared to present evidence that the decision comports with state and federal laws prohibiting discrimination on the basis of disability.  Considerations include whether a reasonable accommodation was available that would not impose an undue hardship, the extent to which the applicant’s holding the position would pose a direct threat to health or safety, that could not be eliminated by reasonable accommodation, and others.  How an agency plans to respond to charges of disability discrimination can be addressed largely in advance, by thoroughly vetting the criteria and decision making process to be used.

Also, key to this process, again, is for the agency to have developed an accurate and sufficiently detailed job description and to have developed minimum standards for the position that have the support of medical or other professional opinions as to the work in question.  

Although the areas of federal and state law involved can be complex, auditing and trouble-shooting the process at the outset, and making sure the best possible procedures are in place before they begin to operate, can greatly help avoid legal problems. 

According to a report prepared by the Center for WorkLife Law, approximately four states and 63 local governments have adopted laws that prohibit discrimination against workers with caregiving responsibilities.  However, there is currently no federal or California law prohibiting discrimination or retaliation against caregivers.  Two attempts were made by the California Legislature to add “familial status” as a protected class under the Fair Employment and Housing Act.  Both attempts were unsuccessful.  Had the law passed, it would have protected employees with caregiver responsibilities from discrimination. 

Although being a caregiver is not a protected class under federal or California law, the EEOC has recognized circumstances in which discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964.  For example, stereotypes based on gender may give rise to discrimination claims based on sex.  Such discriminatory conduct can include denying a female employee a promotion because the employer assumes she will want to spend time with her children instead of at work.  Another example of prohibited conduct based on sex is allowing a female employee, but not a male, to leave early twice a week to care for an elderly parent. 

Stereotyping of caregivers may also constitute discrimination under the American with Disabilities Act of 1990.  The ADA prohibits discrimination against an employee who is associated with an individual with a disability such as a child, spouse or parent.  For example, a job applicant may not be denied a position because the employer improperly assumes that the applicant’s caregiving responsibilities for a child with a disability will negatively affect his or her attendance and work performance.  Under this scenario, the applicant would have a strong argument that the employer violated the ADA by refusing to hire someone because of his or her association with an individual with a disability. 

In addition to Title VII and the ADA, employees who believe they have been harassed, discriminated or retaliated against because of their caregiver responsibilities may also have claims under the Equal Pay Act, Pregnancy Discrimination Act, California Family Rights Act and Family Medical Leave Act.  According to the Center for WorkLife Law, discrimination lawsuits relating to caregiving responsibilities have been filed in every state in the country.  Also, a significant increase has been noted in the number of cases relating to workers with elder care responsibilities.

• Focus on job qualifications when recruiting, hiring and promoting employees.
• Review policies and practices relating to compensation and preparation of performance evaluations to ensure employees are not being penalized for taking protected leave or time off to engage in caregiving.
• Train supervisors and managers about treatment of workers with caregiving responsibilities.
• Consider flexible work arrangements and allow employees to use accrued leave time such as sick, vacation or compensatory time off to perform caregiving functions.
• Promptly investigate complaints of caregiver discrimination.

Finally, effective communication is often the key to managing employees with caregiving responsibilities successfully.  Thus, employers should communicate with employees about any issues that may arise from the employees’ caregiving responsibilities.  For example, if an employee has an excessive amount of absences or is arriving to work late and/or is leaving work early because of his or her caregiving responsibilities, the employer should speak to the employee about the possibility of working a flexible schedule, telecommuting, or the need to take intermittent leave.  

In Joaquin, a police officer was terminated following an evidentiary hearing by an independent review board which found that the officer made a knowing false accusation against his sergeant of sexual harassment. A superior court later ordered the officer reinstated finding that the review board’s decision was not supported by substantial evidence. 

The officer then filed a lawsuit alleging that the City terminated him in retaliation for making the complaint of sexual harassment, a violation of FEHA.  The jury was given the standard CACI No. 2505 instruction on retaliation which requires a verdict in favor of the plaintiff if: (1) the plaintiff made a complaint of harassment; (2) the plaintiff was subjected to an adverse employment action; (3) the complaint of harassment was a motivating reason for the adverse employment action; (4) plaintiff was harmed; and (5) the adverse employment action was a substantial factor in causing plaintiff’s harm.  

Because of this jury instruction, the City all but admitted the essential elements of the cause of action. As a result, the jury had no choice but to return a verdict in favor of the officer.  The City appealed and the Court of Appeal reversed, finding that the jury’s verdict was not supported by substantial evidence because there was no evidence that the City’s decision to terminate the  officer was intended to retaliate against him for making a complaint of harassment.  Rather, the independent board of review, after conducting an evidentiary hearing, had an honest, good faith belief that the officer lied about the allegations against his sergeant. This qualified as a legitimate, nonretaliatory reason for the officer’s termination, defeating the plaintiff’s cause of action. 

It was here the appellate court astutely noted that “retaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA.  However, the element is not identified in the CACI retaliation instruction.”    Thus, had the jury been asked whether the independent review board’s decision was motivated by the intent to retaliate against the officer for making a complaint of harassment, it most likely would have reached a contrary conclusion. 

While intent is an essential element of a cause of action for unlawful retaliation, it undoubtedly is also an essential element of a cause of action for discrimination.  In a thorough discussion of the relevance of discriminatory intent, one court stated, “[t]he defendant’s discriminatory mental state is crucial.”  For that reason, the CACI instruction on discrimination, particularly disability discrimination, is similarly flawed.  

Consider the following hypothetical:  Your employee is giving you reason to doubt her fitness for duty.  You send the employee for a fitness for duty exam. Your agency’s doctor finds the employee unable to perform the essential functions of the job because of a physical condition. After you exhaust the interactive process, you separate the employee because she is unable to perform the essential functions of the job with or without a reasonable accommodation and no other accommodation is feasible. Generally, under FEHA, if an employee has a physical or mental condition that limits a major life activity, including the ability to work in a single job for a single employer, the employee is considered to have a protected disability.  Thus, an employer in this hypothetical has seemingly terminated the employee because of the employee’s disability or because the employer perceived the employee as having a disability. 

The employee sues your agency for disability discrimination.  At trial, the employee pays for a doctor to opine that she is fit and can perform the essential functions of the job.  The jury is given the standard CACI instruction on disability discrimination: to establish a cause of action, plaintiff must prove: (1)  that the agency was an employer under FEHA; (2) that plaintiff was an employee of the agency; (3) that the employer knew or perceived  that the plaintiff had a “disability”; (4) that the plaintiff was able to perform the essential job duties with or without reasonable accommodation; (5) the employer discharged plaintiff; (6) that the plaintiff’s real or perceived “disability” was a motivating reason for the discharge; (7) that plaintiff was harmed; and (8) that the employer’s discharge was a substantial factor in causing plaintiff’s harm. 

Assuming the jury were to be more persuaded by the employee’s doctor-for-hire than your agency’s doctor, the jury will return a verdict against the agency regardless of the fact that your agency had an honest, good faith belief that the employee was unable to perform the essential functions of the job, an otherwise legitimate, nondiscriminatory reason for the discharge. 

However, as the court in Joaquin and numerous other courts in this state have noted, intent is an essential element of a cause of action for discrimination.  Moreover, if an employer’s adverse employment decision is based on reasons which, if true, preclude a finding of discrimination, the employer cannot be liable for discrimination, even if the employer’s honestly held belief is later shown to be wrong or unwise. While the objective soundness of an employer’s proffered reason supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.  That is why the CACI instruction on disability discrimination also presents a flaw in failing to include discriminatory intent as an element to the cause of action. 

The Joaquin decision came at no better time. The California Judicial Council recently issued an “Invitation to Comment” on new and revised CACI, including instructions on retaliation and disability discrimination.  Those wanting to comment on the new and revised jury instructions should submit their comments by March 2, 2012. 

In the case of Dickerson v. Board of Trustees of Community College District No. 522,   Bobby Dickerson was employed as a part-time janitor by an Illinois Community College District.  Between 2005 and 2007, his supervisor gave him written warnings issued for his refusal to perform work assignments, failure to secure job-related equipment, and for leaving the worksite without permission.  In 2005, 2006 and 2007, Dickerson applied for full-time positions with the district, but never succeeded.  Shortly after his third failed attempt at a promotion, Dickerson complained to the district that he was being discriminated against because of his “personal traits” and a speech defect. 

Dickerson then received a performance evaluation in December, 2007 for the period of November, 2006 through November, 2007.  Dickerson received “unsatisfactory” ratings in three of the seven performance categories.  The supervisor also provided written comments such as, “Dickerson is consistently late for work and needs to improve;” “jobs need to be redone because of not listening to the job instructions;” and that Dickerson “does only the bare minimum to meet job requirements.”  Dickerson disagreed with the evaluation and filed a grievance with his union alleging the district gave him the evaluation in retaliation for his exercise of union activities.

In February, 2008, Dickerson filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging the district failed to promote him to a full-time position because it believed he was mentally disabled in violation of the Americans with Disabilities Act (ADA).  Dickerson had a below average IQ which indicated “mild mental retardation.”

Shortly after filing the EEOC complaint, Dickerson approached the Vice President of Human Resources and asked what he should be doing differently in order to be promoted to a full-time position.  The Vice President replied to the effect of, “you are suing your employer and you should not be suing your employer.”

After Dickerson was terminated, he filed another EEOC charge alleging the district’s decision to terminate him was discriminatory.  He further alleged the district retaliated against him for filing his discrimination charge. Dickerson later filed a civil suit.  The district court granted summary judgment in favor of the district.  Dickerson appealed, and the Seventh Circuit Court of Appeals affirmed the judgment in favor of the district.

The court held that under either the direct or indirect method, Dickerson failed to raise a genuine issue of fact that the district had discriminated against him or had retaliated against him, entitling the district to summary judgment.

As an initial matter, the court found that the statement made by the Vice President of Human Resources (that Dickerson should not be suing his employer if he wanted to be promoted) was “imprudent” and could be evidence of retaliatory animus attributable to the district. However, the appellate court found the statement was insufficient by itself to prove direct evidence of discrimination/retaliation in light of the overwhelming evidence that Dickerson’s work performance was the reason for his termination.

More importantly, as the Court noted:

“For a valid discrimination and retaliation claim under the ADA, an employee must show that he was meeting his employer’s legitimate employment expectations, and that he was performing his job satisfactorily.”

In this case, the record demonstrated that as far back as 2005, before Dickerson filed his discrimination complaints, he received warnings from his supervisors for failing to meet his work expectations.  The Court also found that Dickerson received two poor performance evaluations that he disagreed with, but that did not result from unlawful discrimination. 

This case is a good example of why honest, detailed and timely performance evaluations, verbal counselings, and written warnings are important.  Not only does such documentation inform the employee of areas needed for improvement, but it can also be a valuable defense to a meritless claim of discrimination, harassment or retaliation. 

One of the cases was filed against Walgreens drug store for failing to accommodate and for firing a diabetic employee who was cashier in the company’s South San Francisco store.  The employee, who worked for Walgreens for nearly 18 years without a blemish in her work history, opened a bag of chips while on duty because she was suffering from an attack of low blood sugar.  The chips cost less than two dollars and the employee paid for it.  The EEOC alleges that the company fired her after it learned of the incident although it knew the employee was diabetic. 

The EEOC also filed a lawsuit against Merritt Restaurant and Bakery, an Oakland eatery, for firing an employee who suffered from seizures.  The employee, a cook and kitchen manager, had a seizure during the night shift.  Although the employee’s physician cleared him to return to work, the employer delayed his reinstatement and transferred him to the day shift which resulted in fewer work hours and less pay.  According to the EEOC, the employee complained about the change in his work conditions and was fired.

Modesto retailer Buy-Rite Thrift Store fired an epileptic employee after he had small seizures at work.  The EEOC alleges that the company improperly “relied on its own judgment – which is not consistent with the law – to determine that [the employee] was a danger to himself and others” instead of asking the employee to “take a fitness exam or provide medical documentation of his ability to perform the job duties required of his position.”

Finally, the owner of a McDonald’s in Oakhurst was sued by the EEOC for demoting and causing the constructive discharge of an employee with cerebral palsy.  The employee had worked for a prior owner since 2006 without incident.  In fact, the employee had been promoted to a supervisory position.  Within two months of new ownership taking over the McDonald’s operations in 2009, the employee was demoted to a janitorial position.  They also cut his hours and reduced his pay.  The EEOC alleges that the employee was forced to quit his job as a result of the company’s treatment of him.  

While it is too early to know whether these employers will vigorously defend their actions, these lawsuits demonstrate that disability discrimination can come in many forms.  Important lessons can also be learned from these cases.  First, employers should refrain from forming their own opinions on whether an employee is medically or physically able to perform the essential functions of the job.  If there is a valid question as to the employee’s abilities, the employer should ask the employee to take a fitness for duty exam or provide medical documentation certifying fitness.  Second, employers must be flexible in accommodating disabled employees.  This may mean providing accommodations if the employee experiences symptoms related to his or her disability in the workplace.  For example, Walgreens could have accommodated the diabetic employee immediately by simply allowing her to eat the chips and take a break long enough to allow her to raise her blood sugar.  Finally, if an employer wants to change the working conditions of a disabled employee, the employer should evaluate the reasons for the change to make sure it is for legitimate non-discriminatory business reasons.

Emerging technologies, such as e-book readers, seem to be everywhere and growing in numbers.  E-book readers offer students the ability to download books instantaneously and carry hundreds of books on a hand-held device.  But given that some e-book readers do not have text-to-speech functionality or Braille displays, what should a school or community college consider before introducing this type of emerging technology into classrooms?

Schools and community colleges must comply with Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) when introducing any emerging technology, including e-book readers, into classrooms.  One year ago, the U.S. Departments of Education (DOE) and Justice (DOJ) issued a “Dear Colleague Letter” that sums up the issue of compliance as follows:

“Requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities—individuals with visual disabilities—is discrimination prohibited by the [ADA and Section 504] unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.”

In follow up to questions from this original “Dear Colleague Letter,” the DOE recently issued additional guidance with some practical tips on how to ensure that emerging technologies are accessible, or can be made accessible, to students with disabilities.  For example, may a school or community college that makes e-book readers available to students provide traditional alternative media, such as print books, as an appropriate accommodation under the ADA and Section 504?  Probably not, because any alternative media for visually-impaired students must provide access to the benefits of technology that other students receive in an equally effective and equally integrated manner. 

However, schools do not always need to provide visually-impaired students with the same form of emerging technology that it provides to other students.  For example, take a school library that makes e-book readers available for students to loan.  To comply with Section 504 and the ADA, the library may provide access to the same educational benefits by providing students tablet computers which can access the same electronic books and which have text-to-speech functionality.

As another example, a high school teacher may want to incorporate video clips into an online homework assignment, but is unable to include audio in the video clips.  To accommodate visually impaired students appropriately, the teacher could create audio clips that describe the corresponding video clips that are accessible by students using screen readers.  In this case, the teacher may need to provide additional time for students using screen readers to complete assignments or tests.

When considering whether and how to use emerging technologies in the classroom, determine whether the technology is accessible to all students and, if not, what alternatives exist that will provide the same access to educational benefits in an equally effective and integrated manner.

An employer called with this inquiry: “one of our employees has been on leave under The Family & Medical Leave Act (FMLA) for a serious health condition and the 12 weeks have expired.  The employee has not come back to work and the most recent medical note states that the employee will not be able to return for another two months.  Can we fire this employee?”

If all we had to worry about was FMLA then the answer may be yes.  However the answer is quite likely no for one or more reasons unrelated to FMLA.  First, if the serious health condition was at all work-related or work-aggravated then a termination may constitute discrimination for having had a worker’s compensation covered injury or illness.  Generally, however, terminating the employee automatically after expiration of FMLA leave might create a violation of the Americans with Disabilities Act (ADA). 

Issues of ADA and leaves of absence as reasonable accommodation were discussed at a meeting of the U.S. Equal Employment Opportunity Commission (EEOC) this June 8 in Washington D.C.  It is well known that under ADA, as well as under state laws like California’s Fair Employment and Housing Act (FEHA), an employer must provide a reasonable accommodation to a disabled employee if the accommodation will allow the employee to perform the essential functions of the job.  As the EEOC discussed earlier this month, that accommodation may frequently be additional leave of absence.  As the Chair of the EEOC stated,

“a period of leave - whether for medical treatment, recovery, or training to use adaptive equipment - is often the reasonable accommodation that permits a person with a disability to remain gainfully employed.”

Thus, the law may require an additional leave of absence beyond the 12 weeks permitted by FMLA if the employee’s condition constitutes a disability, a term which is defined in California so broadly that it covers almost any health condition that interferes with the performance of the job.  It has also been made clear that the leave of absence need only be “reasonable,” it need not be indefinite.  However, the burden would be on the employer to establish a business necessity why it could not provide the more lengthy leave of absence.

We advise our clients that it is unwise to have an inflexible leave policy that calls for automatic termination once the maximum amount of leave expires.  Every case must be treated on an individualized basis and the “interactive dialogue process” called for in the FEHA should be utilized to involve a discussion directly with the employee about these issues.  Further, the opinion of the employee’s physician must be taken into account. Employers should never “play doctor.”  Further, when deciding whether an employee is medically able to return to work, employers should never have a requirement that the employee must be able to return to work without restriction.  Both ADA and FEHA require reasonable accommodation to an employee’s restrictions if possible, unless this creates an undue hardship for the employer. This may require job restructuring, reassignment of duties or other measures as long as the employee still can perform the essential functions of the job. Establishing undue hardship is very difficult. Cost alone does not make a hardship “undue.”

Finally, and perhaps most importantly, the individuals at your agency or company assigned to engage in this analysis and make these decisions should be adequately trained in ADA concepts and procedures.  We have encountered a number of agencies who leave these decisions to worker’s compensation administrators who, while highly trained in that field, are lacking in ADA/FEHA knowledge. 

An industry has developed of attorneys keen to file lawsuits against employers alleging violation of ADA and FEHA alleging disability discrimination.  Your job is to be proactive to prevent situations from developing which could expose your agency or company to litigation and potential liability.

Cuiellette was employed by the Los Angeles Police Department (LAPD) as a police officer.  LAPD had a standing practice of offering “permanent light duty positions” to disabled peace officers.  Cuiellette was injured while on duty, filed a workers' compensation claim, and was deemed to be 100% disabled.  He ultimately returned to work for the LAPD in a "light duty" position doing administrative work in the fugitive warrants unit.  This assignment was similar to other "permanent light duty" positions to which other disabled officers had been assigned in the past.  After being in this assignment for a mere six days, Cuiellette's supervisor told him that he could no longer work because he was 100% disabled.  Cuillette sued for disability discrimination, claiming he had been discriminated against and that he was not provided with an interactive process or reasonable accommodations prior to being removed from his position.

The Court of Appeal held that LAPD's removal of Cuiellette from the light duty position did constitute disability discrimination.  The Court honed in on the fact that the LAPD had a long standing practice of assigning disabled officers to permanent light duty positions in situations where they were no longer capable of performing the full essential functions of a police officer position.  The court also distinguished the facts of this case from those in Raine v. City of Burbank, which held that there is no obligation to provide employees permanent light duty assignments as an accommodation.  In Raine, Burbank had a light duty policy for officers who were temporarily disabled but not those permanently disabled as in LAPD’s case.  As such, the Raine court held there was no obligation to make a temporary assignment permanent. 

In addition, unlike Raine, LAPD had a significant number of permanent, light duty positions in which it placed disabled peace officers who could no longer perform the full essential duties of the job.  It is noteworthy that LAPD, compared to Burbank’s police department, is a much larger agency.  The Court ruled that, because LAPD had a permanent and available light duty position for Cuillette, the relevant question was whether he could perform the essential functions of the light duty position, not whether he could perform the full essential functions of what had been his regular position as a full duty police officer.  This was the focus of the court’s inquiry because an employee who is being accommodated must meet the minimum qualifications for, and be able to perform, the essential functions of the position being offered as a reasonable accommodation. 

It bears noting that it is a common practice for police agencies to have light duty positions for injured officers.  If your agency has a "light duty" policy or practice, and does not intend to have light duty positions be deemed permanent, the agency should clarify that light duty positions are only for temporary work restrictions, and ensure that disabled employees are not permanently assigned to such light duty positions.

This guest post was authored by Heather DeBlanc

The American Disabilities Act (ADA) used to allow any animal to qualify as a “service animal” as long as it was trained to do a task for an individual with a disability.  In the early 1990’s, when the Department of Justice originally issued its regulations, ADA did not define the parameters of acceptable animal species.  Over the last decade there has been an increase in the number of unusual animals, such as pigs, snakes, iguanas, miniature horses and parrots, which have been promoted as service animals.  There has also been a rise in the number of people who abuse laws by claiming their pet is a service animal. 

Effective March 15, 2011, new laws have narrowed the definition of service animal to include only dogs and miniature horses.  The definition specifically excludes all other species and clarifies that emotional support animals or pets are not service animals.  The discernable quality of a service animal is that, when the handler is in distress or needs something, it is trained to respond.  Where an animal’s mere presence provides comfort or support, it is not a service animal. 

The laws covering service animals include ADA Titles II and III, Section 504 of the Rehabilitation Act, the Fair Housing Act (FHA) and California Civil Code Section 54 et seq. 

ADA Title II applies to state and local governmental entities.  ADA Title III applies to businesses and nonprofit entities that are “public accommodations,” and private entities that offer examinations and courses related to educational and occupational certification.  Covered entities must modify policies, practices and procedures to permit use of service animals to accommodate individuals with disabilities.  (See 28 C.F.R. §§ 35.136(a) and 36.302(c).)  Under ADA and Rehabilitation Act (for purposes other than housing) the definition of service animal is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. . .”  The regulations also carve out an exception for miniature horses as service animals if they meet certain assessment factors.  California law only references dogs and no other species.  Because federal laws impose additional requirements, an entity’s policies and procedures should comply with the federal requirements. 

A public agency may have a service animal removed from the premises if it is out of control and the handler does not take control or if the animal is not housebroken.  Also, the agency is not allowed to ask about the nature or extent of a disability, but may make two inquiries:  1) whether the animal is required because of a disability or 2) what work or task the animal has been trained to perform.  The agency should not make these inquiries when it is readily apparent that the animal is trained to perform tasks for an individual with a disability.  However, no documentation or proof of certification is required to prove the animal is a service animal and no surcharge may imposed because of the animal’s presence. 

The standards for on-campus housing at a college or university are different.  The U.S. Department of Housing and Urban Development (HUD) has interpreted the FHA to require accommodation of “assistance animals.”  Assistance animals include “species other than dogs, with or without training, and animals that provide emotional support.”  The animal may not be permitted under certain circumstances (i.e. threat to health and safety, may cause property damage, or poses certain burdens). 

Covered entities should update their policies and procedures to ensure compliance with the new accommodation requirements.  

Employee substance abuse poses significant challenges for employers.  At what point in time is a drug user no longer a user?  Certainly, given the complexities surrounding drug use, addiction and recovery, this is a difficult question for an employer to answer.  The 10^th Circuit U.S. Court of Appeals in Mauerhan v. Wagner Corp., was recently posed with this difficult question and its answer should come of little surprise – it’s complicated.

Plaintiff Mauerhan was terminated by his employer, Wagner Corp., for violating its drug policy, but was told by his supervisor that he could return if he got “clean.”  Soon after his termination, Mr. Mauerhan entered into a drug rehabilitation program and tested positive for cocaine and marijuana upon entering the program.  He completed the program in one month and his prognosis at discharge was described by a rehabilitation counselor as “guarded.”  The day after completing the program, Mauerhan contacted Wagner and asked to return to work.  Wagner refused to re-employ Mauerhan in the same position and Mauerhan subsequently filed an action against Wagner alleging discrimination under the Americans with Disabilities Act (ADA) on the basis of his status as a drug addict.

Under the ADA, an employee is not a qualified individual with a disability if he or she is “currently engaging” in the illegal use of drugs when the employer acts on the basis of such use.  42 U.S.C. § 12114(a).  Indeed, section 12114(a) provides a “safe harbor” for employees who are not “currently engaging” in the illegal use of drugs and specifically exempts an employee who “has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use….”  Id. at Section 12114(a)(1).

In Mauerhan, the 10^th Circuit interpreted the “currently engaging” exception to the ADA.  Mauerhan argued that he was no longer “currently engaging” in the illegal use of drugs because he had completed the one-month addiction treatment program and was no longer engaging in drug use when he sought re-employment.  The 10^th Circuit followed several other circuits and refused to adopt a bright-line rule for determining when an individual is no longer “currently engaging” in drug use.  Rather, the Court held that an individual’s eligibility for the safe harbor must be determined on a case-by-case basis.  Specifically, the circumstances of the individual’s drug use and recovery must justify a reasonable belief that drug use is no longer a problem.  With respect to Mr. Mauerhan, the 10^th Circuit found that he was “currently engaging” in the use of drugs when he sought re-employment.  The Court relied on the uncontroverted expert testimony of an addiction specialist who declared that approximately three months of treatment would be necessary for an addict like Mauerhan to reach a “threshold of significant improvement.” 

The Mauerhan decision reveals the complexities surrounding drug use, addiction and the recovery process.  By refusing to adopt a bright-line rule for determining when an individual is no longer “currently engaging” in drug use, the 10^th Circuit acknowledged that the timeframe for drug addiction recovery is not absolute and that a balancing analysis must be applied on a case-by-case basis.  The Mauerhan decision provides valuable insight to employers.  Employers should strongly consider utilizing a more flexible approach when addressing employees who suffer from substance addiction.

LCW provides a workshop and workbook on Issues and Challenges Regarding Drugs and Alcohol in the Workplace to assist public agencies with these matters.

In the case of Wills v. Superior Court, Linda Wills was a clerk for the Orange County Superior Court (OC Court) and suffered from bipolar disorder with intermittent bouts of manic episodes.  Wills was newly assigned to a city police department’s lockup facility and, one morning upon her arrival to the department, she angrily swore and yelled at employees, accusing them of intentionally leaving her in the hot sun as she waited to be let in to the secured facility.  She told a police officer and another employee that she had added them to her “Kill Bill” list for leaving her in the heat.  The employees understood Wills’ “Kill Bill” statement was a reference to the film in which the main character made a list of people she intended to kill. The city’s police department reported the incident to the OC Court resulting in her removal from the assignment.  Wills was unaware that she was in the early stages of a manic episode.  Within days, Wills’ doctor placed her on medical leave.

While on leave, Wills forwarded strange and alarming emails and cell phone ringtones to co-workers.  The emails expressed anger toward coworkers and family members who she viewed as betraying her, indicating that “God” would ensure that Wills’ family and friends “will pay for what they put [me] through…” After several weeks, Wills’ doctor released her to work without restrictions.  The OC Court placed her on paid administrative leave pending an investigation into what many complained were threats of violence.

Following the investigation, Wills was terminated by the OC Court for threatening a police officer and other department personnel, threatening and inappropriate communications with co-workers, misuse of court resources, and poor judgment, all in violation of the OC Court’s written policy.  Wills filed a complaint with the Department of Fair Employment and Housing (DFEH) alleging that the OC Court had discriminated against her by denying her family and medical leave.  The OC Court responded to the DFEH charge by asserting that Wills had been granted all requested leave and that it had not terminated her because of her disability.

Wills later brought suit against the OC Court asserting several causes of action.  After summary judgment was granted in favor of the OC Court, Wills appealed.  The Court of Appeal upheld the trial court’s grant of judgment in favor of the OC Court.  In particular, as to Wills’ cause of action for disability discrimination, the Court  found that FEHA authorizes an employer to distinguish between disability-caused misconduct and the disability in the narrow context of threats or violence against coworkers. 

Applying the McDonnell-Douglas burden shifting approach used in motions for summary judgment, the Appellate Court initially found that Wills stated a prima facie case of disability discrimination because there was no evidence in the record that that Wills’ misconduct toward her coworkers prevented her from performing the essential duties of her job.  Instead, the Court held that Will’s threats of violence were better addressed at the next stage of the burden shifting approach. 

The burden then shifted to the OC Court to articulate a legitimate, nondiscriminatory reason for the termination.  It was here that the Court of Appeal held FEHA authorizes an employer to distinguish between disability-caused misconduct and the disability itself “in the narrow context of threats or violence against coworkers.”  This saves employers from the dilemma of either being liable for disability discrimination or failing to provide a safe work environment for all employees.  However, the Court was clear that terminating an employee in this situation is different than situations involving misconduct impacting an employee’s job performance where the employer could potentially address the performance problems through an accommodation.  The Court held that under the circumstances, the OC Court’s termination of Wills for her violation of the OC Court’s written policy against making threats in the workplace was a legitimate, nondiscriminatory reason for Wills’ termination.

The burden therefore shifted back to Wills to prove that the OC Court’s claimed legitimate,  nondiscriminatory reason for her termination was merely a pretext for discrimination based on Wills’ disability.  This was a burden Wills could not meet.

This is an excellent case for employers who may be given the “Hobson’s choice” of risking liability for disability discrimination if it chooses to discipline an employee for disability-caused threats of violence or risking its own negligence for failing to provide a safe environment for all employees.

The New York Times recently reported that employers who have implemented smoker-free workplace policies now have applications that “explicitly warn of ‘tobacco-free hiring,’ job seeker must submit to urine tests for nicotine and new employees caught smoking face termination.”  Employers who have adopted policies banning smokers from employment justify this hiring practice as advancing their mission to promote personal well-being and healthier living.  These employers also cite efforts to reduce high health care costs and increase employee productivity.  Opponents of smoker-free policies argue that they invade personal privacy and could pave the way for employers to regulate other lifestyle choices such as consuming alcohol or even fast food.

This growing trend begs the question of whether California employers may legally adopt similar policies that smokers will not be hired.  After all, California was a leader in passing anti-smoking laws that banned smoking in public places such as restaurants, bars and casinos.  Currently, California is considering legislation that if passed would ban smoking at all state parks and beaches.  Even the stereotype of a Californian is that of a health-conscious, physically fit individual. 

However, Californians are also known to be champions of civil liberties.  Thus, California employers will likely face numerous efforts seeking to obstruct implementation of smoker-free policies.  For example, Labor Code sections 96(k) and 98.6 prohibit employers from discharging an employee or discriminating against any employee or applicant for employment because the employee or applicant engaged in lawful conduct occurring during nonworking hours away from the employer’s premises.  Since the act of smoking itself remains legal in California, employers who refuse to hire smokers may be subject to liability under these provisions. 

In addition, smoker-free policies may be challenged on privacy grounds as an improper attempt to monitor and regulate personal conduct.  Finally, an aggrieved smoker may be able to assert a claim for disability discrimination if he or she is able to show that the employer believed that the smoker would be more likely to miss work due to smoking-related illnesses.  Both the Americans with Disabilities Act and the Fair Employment and Housing Act prohibit discrimination based on a perceived disability. 

Substance abuse by employees costs public agencies billions of dollars each year and results in increased absenteeism, injuries on the job, and health care costs.  Pre-employment drug testing is one way for public agencies to help deter and prevent drug abusers from gaining employment.  There are, however, important employee protections mandated by the Americans with Disabilities Act (ADA) and the California Fair Employment & Housing Act (FEHA) that prohibit employers from discriminating against employees based on the protected status of being a rehabilitated drug addict.

Many public agencies, in order to identify current drug users during the pre-employment process, require any applicant who receives a conditional offer to submit to a drug test.  What if an employer decided to go one step further and adopt a “one-strike rule,” whereby any applicant who fails the pre-employment drug test becomes permanently disqualified from future employment—forever?  Would this type of rule run afoul of the anti-discrimination provisions of the ADA and FEHA related to rehabilitated drug addicts? 

The U.S. Ninth Circuit Court of Appeals recently answered this question in its decision Lopez v. Pacific Maritime Association (9th Cir. 2011) --- F.3d --- [2011 WL 711884].  In this case, the employer disqualified an applicant, a drug addict, in 1997 for failing its pre-employment drug test and then again rejected his application in 2004, once the employee had become clean and sober.  The employer did not know of the applicant’s earlier addiction at the time it denied the 2004 application.  In his lawsuit, the applicant claimed that the employer, through its “one-strike rule,” discriminated against him based on his protected status as a rehabilitated drug addict.  The Court disagreed, holding that the “one-strike rule” does not discriminate against people who have recovered from a drug addiction, but rather treats all applicants who happen to have used drugs immediately before the pre-employment drug test, whether as an addict or a recreational user, equally.  The Court also held that because the employer did not learn of the applicant’s prior addiction until after denying his 2004 application, there was no evidence its decision was based on the applicant’s protected status.

Although this employer’s “one-strike rule” may impose a harsh penalty on applicants who test positively for drugs—barring them from employment forever—according to the U.S. Ninth Circuit such a rule does not in itself violate the anti-discrimination provisions of the ADA or FEHA.  A state court in California, however, may decide this issue differently.

LCW provides a workshop and workbook on Issues and Challenges Regarding Drugs and Alcohol in the Workplace to assist public agencies with these matters.

Does an employee who retired because of disability, but is now medically cleared to return to work, have the right to get his old job back?  And, does the employer have an obligation to engage in the interactive process and agree to reasonable accommodations whenever a former employee wants to return to work and even though the employer does not intend to rehire him?  Thankfully, the California Court of Appeal answered no to both questions when deciding a case where Peter Brown and I defended a local fire district in a disability discrimination lawsuit brought by a former fire captain who retired due to a disability in 2002 and demanded to be rehired in 2006.

The Court’s decision is significant because it rejects the former employee’s attempt to  misuse the disability discrimination laws to demand preferential treatment, instead of equal treatment.  The former employee argued that, because he is disability retired, the disability discrimination laws required the district to rehire him, once he was medically cleared to work.  He argued that although retired and no longer a district employee he should nevertheless be treated the same as a disabled employee on medical leave, who has the right to return to work once medically cleared.  The former employee also argued that, once he demanded to return to work, the district was required to immediately engage in the interactive process and agree to specific reasonable accommodations.

The Court of Appeal firmly rejected both arguments.  The Court’s reasoning is captured in these few sentences:

In our view-based, we think, on common sense and common understanding –‘retirement’ is a generally permanent life choice and reflects the understanding of both parties that the employer/employee relationship has terminated.  ‘Retirement’ is not the same thing as ‘leave of absence,’ and no amount of saying it will make it so.

Also, the Court explained, the district did not have an obligation to engage in an interactive process or agree to reasonable accommodation for a former employee it did not intend to rehire.

The decision in this case avoids what would have created an impossible task for employers, to guarantee that a disability retiree could have his old job back if he was later medically cleared and wanted to return to work.  That would give employers the options of indefinitely holding a job open or filling the job, but creating another one if the former employee ever asks to return to work.  This would provide disability retirees even more protection than current employees on leave as the cases do not require that their position be kept open for an indefinite time period.

Although, this victory was decisive, a word of caution is in order.  Although, there is no right to be rehired, a disability retiree has the right to apply for positions open to external candidates.  And, of course, the application must be processed and considered using the same non-discriminatory standards as any other applicant.

Occasionally, no matter how hard the agency tries, an employee cannot be accommodated and no vacancy exists.  The only option at that point is to sever the relationship with the employee.

Once the interactive process is completed, and assuming no accommodation is available, what procedure must be followed before the employee can be separated?  The answer was provided by the California Court of Appeal in the case entitled Bostean v. Los Angeles Unified School District (1998) 63 Cal.App.4th 95.  In that case the District concluded that its employee, because of medical reasons, could not work.  The District decided to place the employee on unpaid leave of absence.  The Court of Appeal held that, in essence, the District had acted to deprive the employee of a vested right – her pay and benefits – without providing due process of law.  Accordingly, even though the action was non-disciplinary, Bostean was entitled to the equivalent of Skelly rights.  Thus, the District was obligated to provide Bostean with written notice of its intent and its reasons together with the right to respond and other entitlements provided by the Skelly doctrine. 

Accordingly, in situations where a determination has been made, even after an interactive dialogue process, that an employee with a disability cannot be accommodated in any manner, either in their regular job or in a possible vacancy, the agency must provide the Skelly process before removing the employee from employment status.