When working with employees with disabilities, employers need to keep track of various laws that govern whether the employee may be entitled to leaves, accommodation, or even a disability retirement.  What makes matters more complicated is that the definition of disability is not the same under each law.  So, while a medical condition may meet the legal definition of a disability under one of the laws, it may not under another.  We will explore the various ways that “disability” has been defined in federal and California law.

FMLA/CFRA

Under the federal Family and Medical Leave Act and the California Family Rights Act, an employee may be eligible for leave if the employee has a “serious health condition.”  Under the FMLA, a “serious health condition” is defined as “an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider.”  Similarly, under the CFRA, a “serious health condition” is defined as “an illness, injury (including, but not limited to, on-the-job injuries), impairment, or physical or mental condition of the employee or a family member of the employee that involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance abuse.”

One major difference between the two leave laws is pregnancy-related disabilities.  Under the FMLA, pregnancy-related disabilities do qualify as a “serious health condition.”  However, under the CFRA, pregnancy-related disabilities do not.  Under California law, employees with pregnancy-related disabilities may be entitled to Pregnancy Disability Leave, which is separate from leave under the CFRA.

ADA/FEHA

Under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act, an employee may be eligible for a reasonable accommodation if they have a physical or mental condition that impairs a major life activity.  Please note that under the ADA, the requirement is that the condition must “substantially” impair a major life activity, but that under the FEHA, the impairment need not be “substantial.”  For California employers, we recommend using the FEHA standard.

Unlike the definition of “serious health condition” above, a disability under ADA/FEHA does not need “inpatient care” or “continuing treatment” to be considered a disability.  Rather, ADA/FEHA examines whether a “major life activity” is impaired.  Major life activities include, but are not limited to, 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.

PERL – Disability Retirement

For those agencies that are subject to the Public Employees’ Retirement Law, there is yet another definition of disability that they must know.  Under PERL, an employee may be eligible for disability retirement if the employee has a “mental or physical incapacity for the performance of the usual duties.”  The “incapacity for performance of duty” means “disability of permanent or extended duration, which is expected to last at least 12 consecutive months or will result in death”

Here, there is a need to look at the duration of the incapacity prospectively.  It must either be permanent (which is not necessarily the same thing as “Maximum Medical Improvement” or “Permanent and Stationary”) or expected to last at least 12 months.  So, while a short-term disability under ADA/FEHA may entitle an employee to an accommodation, it may not entitle the employee to a disability retirement.

Workers’ Compensation

Workers’ compensation defines an industrial injury as any injury or disease arising out of employment, regardless of fault.  This is a broad definition, but the key is that it arises out of employment.  An industrial injury may overlap with any of the definitions of “disability” above, but that is not always necessarily the case.

Paid Sick Leave

California’s Paid Sick Leave Law provides for a minimum amount of sick leave for an employee to use for the “diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee.”  Employers probably do not consider employees using “sick leave” as having a disability.  For example, a common cold is probably not going to qualify as a disability under the laws above.  However, this does not mean that the laws are mutually exclusive of one another.  If an employee has a condition that qualifies as a “disability,” then the employee could also be eligible to use leave under the Paid Sick Leave Law.

Employer Policies

Finally, your agency may provide its own sick leave benefits to your employees.  Please review your agency’s own policies, rules, and regulations to determine for what purposes sick leave can be used.

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Employers have to navigate the various laws that define “disability.”  Unfortunately, there is not one standard definition that applies to all the various laws.  As a result, it can often be confusing and difficult at times (especially when you may get conflicting opinions from different doctors!).  Please consult with legal counsel if your agency needs assistance in navigating these various laws.

This article was originally published in February 2014.  The information has been reviewed and is up-to-date as of August 2021. 

Under the federal Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (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 description

    Job descriptions are critical in the disability interactive process for identifying the essential functions of the job.  This is one reason why we repeatedly urge employers to update job descriptions.  However, the employer should refrain from over-relying on the written job description for identifying the essential functions without considering what is actually occurring in the workplace.  For instance, a written job description for a parks maintenance worker may list removal of trees as an essential job function and state that this function requires the worker to use a heavy piece of equipment such as a wood chipper.  However, in practice the maintenance workers may have only removed one tree in the last several years.   So this essential function may not be essential after all.  This is a fact specific determination that should be made on a case-by case basis.  The important thing for the employer to do when determining the essential functions is to make the relevant inquiries of incumbents and supervisors for the job position and consider how the job is currently being performed.
  2. Failure to consider leave of absence or telework as an accommodation

A leave of absence may constitute a reasonable accommodation especially where it could rehabilitate a disabled employee well enough for him or her to be able to return to work, even if the employee has exhausted leave allowance.  The employer, however, cannot require an unpaid leave of absence if the employee can work with a reasonable accommodation.  The employer is also not required to provide an indefinite leave of absence as a reasonable accommodation.

Further, since the pandemic, employers have found that telework has become feasible for more job positions as a possible reasonable accommodation.  If the job position lends itself to telework, this is another possible temporary accommodation to consider.

  1. Failure to recognize employer’s ongoing obligation to engage in the interactive process

In general, it is the responsibility of the individual with a disability to notify the employer that he or she needs an accommodation, and initiate the reasonable accommodation interactive process.  However, even in the absence of such notification, the employer must inquire whether an employee with a known disability is in need of a reasonable accommodation.  Awareness of a potential need for accommodation could be imputed to the employer from such sources as a physician’s note or conduct observed by co-workers, and thus trigger the employer’s duty to engage in the interactive process.   Importantly, once a reasonable accommodation is agreed upon, that does not end the employer’s obligation to engage in the interactive process.  The accommodation provided should be reviewed periodically to ensure that it is still reasonable and remains effective in allowing the employee to perform the essential functions of the job.

  1. Failure to consider all vacant positions for reassignment

    Reassignment to a vacant position should be considered in these circumstances: (1) accommodation within the individual’s current position would pose an undue hardship; (2) the employee can no longer perform the essential functions of the current position even with accommodation; (3) if both the employer and employee agree that reassignment is preferable; or (4) if the employee so requests.

The employee with a disability is entitled to preferential consideration for assignment to a vacant position over other applicants and incumbent in-house candidates, unless doing so would violate a bona fide seniority system.

  1. Failure to analyze the undue hardship defense thoroughly

    Undue hardship is an ADA and FEHA defense to the employer’s obligation to provide reasonable accommodation to a disabled employee.  The employer must affirmatively show that a requested accommodation creates an undue hardship.  While the employer may consider the impact of an accommodation on the ability of other employees to do their jobs, the employer may not claim undue hardship solely because providing an accommodation has a negative impact on other employees, such as triggering accusations or complaints that the disabled employee is receiving “special treatment.”  Employers will sometimes also cursorily conclude that the requested accommodation is too expensive and would cause financial difficulty and therefore is an undue hardship.  However, financial difficulty per se is not enough.  There are numerous factors, including cost, which must be evaluated in the context of each employer (e.g., cost vs. the employer’s budget or financial ability), when evaluating an undue hardship defense.  Employers should review all the ADA and FEHA factors and carefully analyze whether a requested accommodation would cause undue hardship.  Keep in mind that hardship is not enough to justify denying accommodations.  The hardship must be “undue.”  The hardship must create a significant difficulty or expense to the employer.  In enacting the ADA and FEHA requirements, Congress and the California legislature intended that some hardships must be shouldered by employers in order to accommodate disabled employees and applicants.

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

 

This article was originally published in June 2014.  The information has been reviewed and is up-to-date as of August 2021.

 

Retirement-Sign.jpgIt is a common phrase that most in the public sector have heard of – a “PERS audit.”  However, despite having heard of CalPERS (“PERS”) audits occurring, many have not experienced an audit firsthand and are unfamiliar with what PERS audits entail.

CalPERS’ Office of Audit Services performs comprehensive reviews of public agency employers.  Part of that review function includes regularly conducting audits of public agencies.  These audits cover a wide range of issues such as reporting of special compensation, payroll processes, retired annuitant issues, part-time employee enrollment, and independent contractor designation.  There are multiple factors that prompt an audit by PERS.  PERS has an internal risk assessment ranking of agencies and may select an agency for an audit based on ranking.  Other factors may include media reports and “tips” provided to PERS.

If your agency is selected for an audit, PERS will provide a notice of the upcoming audit in writing.  PERS will then contact your agency to schedule on-site fieldwork visits and request various relevant documentation related to the audit, some of which will be produced before the visit and some of which will be produced during the visit.  Relevant documentation may include payroll records from a selected employee sample, labor agreements, employment contracts, and policies and procedures.  The on-site field work at your agency may last from a few days to a few weeks.

After PERS conducts its on-site field work and review of documentation, PERS prepares a draft audit report for the agency to review and respond.  It may take up to one year or more after the last on-site visit for the agency to receive the draft audit report.  The draft report will include each of PERS’ proposed findings on each issue audited, and the facts and documents that it relied upon to reach the findings.  The agency will then be allowed to prepare a comprehensive response to the draft audit report.  The response may identify errors and remedy any deficiencies in the draft report.  The response to the draft report is an important opportunity for the agency to address and comment on the audit report because the agency’s response will be included as an appendix to the final report.

Typically, within 3-6 months after receiving the agency’s response to the draft audit report, PERS provides the agency with a final audit report.  The final report is a public document and is posted on PERS’ website.  After the final report is issued, if the findings in the audit report demonstrate failings on the part of the agency, individual departments at PERS continue to work with the agency to develop a corrective action plan regarding the findings.  If PERS and the agency are unable to resolve the failings through a corrective action plan, PERS issues directives to the agency in line with the findings.  The agency may appeal the directives.  An administrative law judge hears the appeal and issues an advisory decision to the PERS Board for a final decision.  It could take several years from the date of filing the appeal to receive a final decision.  The agency may appeal the final decision in Superior Court.

It is important now more than ever for public agencies to be aware of potential issues that may arise if PERS conducts an audit.  Employers should consider reviewing its labor agreements, payroll practices, employee designations, and policies and procedures as part of an internal audit to ensure it is in compliance with the Public Employees’ Retirement Law.

 

This article was originally published in February 2015.  The information has been reviewed and is up-to-date as of August 2021. 

hourglass-small-copy.jpgThe term “on call pay” is subject to various interpretations.  There is on-call pay where an employer pays an employee a flat rate or small hourly amount to be available to the employer, such as $100 per week or $2 per hour.  But wage and hour law may require all of the on-call time to be paid, at least at minimum wage, if the time is considered “controlled.”  As with many wage and hour areas, the issue as to whether the on-call time must be paid depends on the factual circumstances surrounding the situation.  This area is often complicated by an agency’s on-call policy/agreement.  In the event of a later claim, a clear on-call policy can be essential in determining whether the parties characterized the time spent waiting on-call as actual work.

Employers must generally pay employees for actual work performed for the employer, whether the work is performed on the employer’s premises or off-site.  The key factor is whether the employee is actually engaging in work.  For example, an on-call employee who is not required to remain on the employer’s premises, but merely required to notify the employer where he or she may be reached, is not working compensable hours under the Fair Labor Standards Act (FLSA) so long as the employee is not prevented from effectively using the time to engage in personal pursuits.

The Ninth Circuit has held that the two predominant factors in determining whether an employee’s on-call waiting time is compensable overtime are:

(1) the degree to which the employee is free to engage in personal activities; and

(2) the agreements between the parties.

Engaged to Wait or Waiting to Be Engaged?

The proper inquiry into the first factor is whether an employee is so restricted during on-call hours as to be “effectively engaged to wait.”  The Ninth Circuit has provided an illustrative, non-exhaustive list of factors to be analyzed in determining the degree to which an employee is free to engage in personal activities while on-call:

(1) whether there was an on-premises living requirement;

(2) whether there were excessive geographical restrictions on employee’s movements;

(3) whether the frequency of calls was unduly restrictive;

(4) whether a fixed time limit for response was unduly restrictive;

(5) whether the on-call employee could easily trade on-call responsibilities;

(6) whether use of a pager could ease restrictions; and

(7) whether the employee had actually engaged in personal activities during call-in time.

No one of the factors is dispositive.  Therefore, when considering whether on-call time is unduly restrictive, courts balance the factors permitting personal pursuits against the factors restricting personal pursuits to determine whether the employee is so restricted that he/she is effectively engaged to wait.

What Did You Say?

The second factor involves evaluating the agreements between the parties.  An agreement between the parties, which provides at least some type of compensation for on-call waiting time, may suggest the parties characterize waiting time as work.  Conversely, an agreement pursuant to which the employees are to be paid only for time spent actually working, and not merely waiting to work, may suggest the parties do not consider waiting time to be work.  Although it is important to note that the parties’ agreement is a predominant factor, but not a controlling factor.

An agreement will not, in and of itself, shield an employer from on-call liability. Even if there is a memorandum of understanding providing that certain categories of time will not be considered hours worked, if the degree to which the employees are free to engage in personal activities is sufficiently restricted, the time will be considered actual hours worked.  Nevertheless, an agreement that certain time does or does not constitute working time will be afforded deference by the court.

Ultimately, whether employees are entitled to be paid for every hour they are on-call requires a fact-intensive analysis and must be determined on a case-by-case basis.  Therefore, it is essential to understand the appropriate circumstances under which non-exempt employees can be designated as “on-call”, how to properly structure on-call assignments and how to effectively draft on-call policies/agreements in order to avoid triggering hourly compensation requirements.  Employers should also periodically evaluate the on-call assignments and how often employees are called out so they can make sure the organization is operating efficiently and employees are paid properly.

This article was reviewed in August 2021 and is up-to-date.

 

The stock market has reached all-time highs and the economy in general continues to be strong.  In this scenario, many public sector employers are hiring.  Although this is certainly welcome news, the hiring process does, however, carry legal risks.

The following 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 constitute essential functions.

Detail in the job description can also be very important, because vague or overly general job descriptions may not provide proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions.  Misunderstandings 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) justifiable 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.

  1. Establish a Uniform Screening Process for Applications: The next phase to consider is the initial “screening” 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 “screening” must be conducted in a neutral manner that does not result in an improper impact with regard to a protected characteristic, such as race, gender, religion, and age 40 and over.  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 uniformly, and to confirm that decisions were not influenced by unlawful considerations.
  2. Focus Interviews on Job-Related Questions, and Avoid Improper Questions: Like other aspects of the hiring process, interviews must be conducted in a non-discriminatory manner.  Questions should focus on qualifications for the job in question, and not pertain to protected characteristics.  Some unlawful questions are easy to spot, such as asking about an applicant’s race, age, religion, or other protected characteristics.  But according to the Department of Fair Employment and Housing (“DFEH”), 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.  There are, however, ways questions can be phrased to request information the employer legitimately needs without creating an impression of bias.  (For example, it would be appropriate to ask which languages an applicant speaks, but only if relevant to the job at issue.)

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

  1. Background Investigations, Including Reference Checks: Background investigations pose unique legal challenges.  To fill some positions such as police officer, a public agency is actually required by law to conduct such an investigation.  However, applicants have state and federal constitutional privacy rights that bear on what information an agency can seek and in what manner the information may be sought.  Also, an agency must be careful to abide by the same anti-discrimination standards in conducting the background investigation that are required in all other aspects of the hiring process.  Further, there are federal and state statutes that may govern how the investigation is conducted.

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 the applicant’s current or former 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.

  1. Keep Pre-Offer and Post-Offer Separate: 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 and lawful 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 job-related medical examination that is directly related to job performance and business necessity.  Typically, for a conditional job offer to be “real,” an employer cannot conduct medical examinations or otherwise elicit medical information until after the employer has evaluated all relevant 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) has been received, if the evidence cannot reasonably have been collected earlier.  This, however, 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.  (There are also considerations regarding drug tests and the limits applicable law places on them.)

  1. 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 of the applicant or others 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.

* * * *

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

This article was reviewed in July 2021 and is up-to-date.

 

As the summer season winds down, so do public agency departments that hire seasonal workers to staff summer camps, pools, extended park and recreation hours, and a myriad of season-specific facilities and activities. But, just how do seasonal workers impact the agency’s health and retirement benefit obligations?

  1. The Affordable Care Act (ACA), Seasonal Worker Exception

The number of seasonal workers you hire may impact whether your agency is subject to certain ACA obligations. Under ACA, employers that have at least fifty (50) full-time employees, including “full-time equivalent” employees, on average during a particular year, qualify as “Applicable Large Employers” subject to the Act’s shared responsibly and employer information reporting provisions for offers of minimum essential coverage.* However, ACA provides a limited exception to the Applicable Large Employer calculation for employers with “seasonal workers.” (Note: Admittedly, there’s a lot of ACA jargon here. For a primer on ACA, we recommend reviewing our March 2014 post.)

Under the exception, an employer will not be considered an Applicable Large Employer if the following are both true:

  • the employer’s workforce exceeds 50 full-time employees (including full-time equivalents) for 120 days or fewer during a calendar year; and
  • the employees in excess of 50 during that period were “seasonal workers.”

This exception is narrow, and must be carefully applied.  For the purposes of ACA, a “seasonal worker” must be a worker who performs labor or services on a “seasonal basis,” such as a ski instructor or retail workers employed exclusively during holiday seasons. Seasonal based work means work that “ordinarily” pertains to or is of the kind exclusively performed during certain seasons or periods of the year, and which, “from its nature,” may not be continuous or carried on throughout the year.  Accordingly, if your agency’s camp, park, or swimming pool is only operated during summer months, or if it operates at a high demand or for extended hours, only during summer months, the employees associated with the limited seasonal operation may qualify as “seasonal workers” under ACA.  If the employment of those workers also lasts 120 days or less, they may be excluded from the agency’s Applicable Large Employer assessment.

As an aside: we caution that ACA also uses the term “seasonal employee,” which is used in the employer shared responsibility provision, in a different context than “seasonal worker.”

  1. California’s Healthy Workplaces, Healthy Families Act

Despite the ACA requirements discussed above, seasonal workers may be entitled to paid sick leave under California’s Healthy Workplaces, Healthy Families Act. Even a part-time, seasonal worker will be entitled to accrue paid sick leave if the employee works for at least 30 calendar days in a year.  However, the employee must be employed for at least 90 days before he/she is entitled to use accrued time.  When it comes to seasonal workers, be sure to check the 30/90 day requirements against your agency’s sick leave policy.  In some cases, the agency’s policy may be more generous.  In addition, employees returning to your agency for seasonal work within one year from their prior date of separation, are entitled to have previously accrued and unused sick days reinstated.

  1. The Public Employees’ Retirement Law (PERL), Seasonal Employment Exception

Careful consideration is required when determining whether “seasonal” workers are entitled to membership in the Public Employees’ Retirement System (PERS).  Under the PERL, certain part-time or limited term employees are excluded from membership in PERS.  Under any circumstance when the employer hires an employee who is already a member of PERS, the employee must be enrolled in membership with the employer, even if a seasonal worker. In addition, if full-time employment has a fixed term of more than six months, or more than one-year for a part-time employment (an average of at least 20 hours per week), the employee is entitled to membership.  If seasonal employment in fact exceeds six months of full-time service or one year of part-time service (at least an average of 20 hours per week), the employee must be enrolled in membership with CalPERS.  The most often cited membership thresholds for “seasonal” employees is 125 days of service (if paid on a “per diem” basis) or 1,000 hours of services (if paid on a basis other than “per diem”) in a fiscal year.   If  paid service equals or exceeds 125 days or 1,000 hours in a fiscal year, the employee will be entitled to membership. As summer comes to a close, and seasonal employees may still be “on the books,” PERS employers should review the actual number of hours and days the employee has worked in the current fiscal year, to determine whether the employee may now, or soon, be entitled to PERS membership.

For those of you ramping up on employees in the fall/winter season, begin planning ahead today.  Fix contract terms for seasonal workers, ensure they do not exceed work hour / day limits established by the PERL or ACA.  At the same time, ensure that your seasonal workers accrue paid sick leave, if they work for your agency for at least 30 days. And fear not; cooler days are ahead!