California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Category Archives: Disability

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Disability Related Inquiries Should Be Reviewed for ADA and GINA Compliance In Light of EEOC Informal Letters

Posted in Disability, Workplace Policies
The EEOC issued two informal discussion letters critiquing policies and forms used by unidentified public employers when making disability related inquiries of employees.  Although informal discussion letters are not “official” EEOC opinions, they provide guidance on an employer’s legal obligations.  In these informal letters, the EEOC reviewed the agencies’ fitness for duty exam forms and… Continue Reading

Three Common Pitfalls in the Reasonable Accommodation Process

Posted in Disability, Employment
Under the ADA and FEHA, the employer has the duty to identify and implement a reasonable accommodation to allow a disabled employee to perform the essential functions of the job. Common pitfalls for employers in determining appropriate accommodations are: 1.     Over-reliance on the written job descriptionJob descriptions are critical in the disability interactive process for… Continue Reading

A Reminder Of How The Courts Analyze Industrial Disability Applications: Beckley v. CalPERS

Posted in Disability, Retirement
This blog post was authored by Charla Welch Retirement for disability can be an involved, complex, and confusing process. This is especially true where the employee at issue is a local safety member.  Public agencies often ask for our counsel when an application for industrial disability retirement (IDR) is filed.  In a new case, the California… Continue Reading

Will the Supreme Court Follow California’s Lead Regarding Reasonable Accommodations For Pregnant Employees?

Posted in Disability, Workplace Policies
The U.S. Supreme Court is considering whether to hear the appeal of Peggy Young.  She wants the Court to decide whether, and in what circumstances, the federal Pregnancy Discrimination Act of 1978 (“PDA”) requires an employer to provide work accommodations to pregnant employees.  If the Supreme Court decides to take this case, it might possibly… Continue Reading

Obligations of Public Schools to Students Who Are Deaf or Hearing-Impaired: Compliance with the IDEA Does Not Necessarily Foreclose an ADA Claim

Posted in Disability, Discrimination, Education
This blog entry was authored by Hengameh S. Safaei In a case of first impression, K.M. v. Tustin Unified School District, the Ninth Circuit held that a public school district’s compliance with its obligations to a deaf or hearing-impaired student under the Individuals with Disabilities Education Act (“IDEA”) does not necessarily establish compliance with its effective… Continue Reading

New Fair Employment and Housing Commission Regulations Impact Pregnant Employees

Posted in Disability, Discrimination
New Fair Employment and Housing Commission regulations took effect December 30, 2012 and deal with disability discrimination.  This blog post will focus on the impact of the new regulations on issues related to pregnancy and the treatment of pregnancy related conditions as disabilities.  The new regulations expand the scope of pregnancy related conditions that can… Continue Reading

California Supreme Court Says Attorney’s Fees to Prevailing Defendant are Mandatory in Failed Claim of Denial of Access to Disabled Persons

Posted in Disability, Discrimination, Employment
It pays to read statutes carefully. Many statutes authorizing lawsuits for employment discrimination allow an award of attorney’s fees to the prevailing party. Almost uniformly, these statutes have been construed as authorizing an award of attorney’s fees to a prevailing plaintiff as a matter of course but only to a prevailing defendant when the lawsuit… Continue Reading

Ninth Circuit Holds That Marijuana For Medical Use Is Not Protected By The ADA

Posted in Disability
Although medical marijuana use is legal under California state law, it remains illegal under the federal Controlled Substances Act.  Plus, even though medical marijuana use is legal in California, in 2008 the California Supreme Court, in Ross v. Ragingwire Telecommunications, ruled that an employer may discipline an employee who tested positive for medical marijuana.  Recently,… Continue Reading

Is Attendance An Essential Job Function? Not Always!

Posted in Disability
Most of us assume that showing up for work is an essential part of our job. Most employers have attendance policies in place that require employees attendance at the work location.  However, courts have found that regular attendance is not necessarily an essential function for all jobs.  In a recent case, an employee with a… Continue Reading

Trouble-Shooting The Hiring Process For A Public Agency

Posted in Disability, Discrimination, Hiring
There are numerous signals that the U.S. economy is recovering – unemployment numbers are improving in California and elsewhere, there are mixed indications of a brighter housing market, and the stock market over the last months has improved substantially.  The overall mood may have also turned a corner, with less news of economically motivated protests,… Continue Reading

Does Discrimination Occur Against Workers With Caregiving Responsibilities?

Posted in Disability, Discrimination, Personnel Issues
Balancing work and family is becoming increasingly difficult.  Workers are not only responsible for caring for their own children but many are now the primary caretakers of aging parents.  It is also not uncommon for grandparents to care for grandchildren or for an aunt or uncle to care for a niece or nephew.  The U.S.… Continue Reading

Court Finds Unlawful Intent Is Missing From Jury Instructions On Retaliation, But Is It Missing From Instructions On Disability Discrimination, As Well?

Posted in Disability, Discrimination, Retaliation
The California Court of Appeal recently highlighted a fundamental flaw in the California Civil Jury Instructions (“CACI”) on a cause of action for retaliation in violation of the Fair Employment and Housing Act (“FEHA”).  The instruction is missing the element of retaliatory intent or animus.  This flaw has not been brought to the forefront previously… Continue Reading

Documentation Of Poor Work Performance Defeated Claims Of Discrimination And Retaliation In Violation Of The ADA

Posted in Disability, Discrimination, Retaliation
How many times have you heard LCW attorneys tell you to timely and accurately complete performance evaluations?  You likely hear this advice at every Employment Relations Consortium training you’ve attended.  A recent case reminds us all how crucial honest performance evaluations and other forms of progressive discipline can be. In the case of Dickerson v.… Continue Reading

Recent EEOC Disability Discrimination Lawsuits Are A Reminder To Employers To Comply With The ADA

Posted in Disability, Discrimination
Since the beginning of month, the U.S. Equal Employment Opportunity Commission (“EEOC”) has filed a dozen lawsuits against employers for disability discrimination.  Four lawsuits, which were filed in the Northern and Eastern Districts of the U.S. District Court, address various facets of disability discrimination. One of the cases was filed against Walgreens drug store for… Continue Reading

Using E-Book Readers In Classrooms Without Running Afoul Of Disability Laws

Posted in Disability, Education
This guest post was authored by Alison Carrinski 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,… Continue Reading

ADA And FMLA: How They Overlap

Posted in Disability, FMLA
We get questions… 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… Continue Reading

Light Duty Assignments And The Disabled Employee

Posted in Disability, Discrimination, Public Safety Issues
Courts have held that generally employees are not obligated to make a temporary assignment permanent where an employee requests reasonable accommodation because of a disability.  This falls in line with the idea that employers are not expected to create as a form of accommodation new positions that did not previously exist.  Recently, however, this notion… Continue Reading

Employers May Distinguish Between Threats Of Violence As Grounds For Discipline And The Disability Which Causes The Misconduct

Posted in Disability, Discrimination
For the first time, a California court has held that, under the Fair Employment and Housing Act (FEHA), an employer may distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers.  In the case of Wills v. Superior Court, Linda Wills was a clerk for the Orange… Continue Reading

Smokers Need Not Apply: Good Idea Or Illegal?

Posted in Disability, Discrimination, Privacy, Workplace Policies
Hospitals and other medical-related employers are at the forefront of a growing trend of employers who have adopted policies prohibiting the hiring of smokers.  This practice goes far beyond merely banning employees from smoking in the workplace.  Rather, these employers are actually telling smokers that they need not apply for employment at all, or that… Continue Reading

One-Strike Rule For Pre-Employment Drug Testing: Harsh Consequences Or Disability Discrimination?

Posted in Disability, Discrimination
This guest post was authored by Alison Carrinski 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,… Continue Reading