Fans of the late night television show Saturday Night Live probably have seen the recurring sketch called, “The Californians.” “The Californians” is a soap opera, and the characters portray Californian stereotypes, such as poking fun at the way Californians speak and drive and their obsession over traffic. One of the recurring jokes is that Californians regularly discuss which freeways and roads they take to get somewhere. The characters constantly reference the 405 or the 10 (common freeways in Los Angeles).
Discussing disability issues with employees can often feel like a discussion in “The Californians.” Only, instead of freeways and roads, employees constantly throw out terms like “accommodation,” “medical leave,” “workers’ compensation leave,” “pregnancy,” “maternity leave,” or “injury.” Employees often reference taking FMLA (Family Medical Leave Act) even if they do not know what it stands for or what a serious health condition means.
Disability issues can get complicated when different leaves intersect and overlap. Employees may not know the difference between FMLA, California Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL). However, employers are not only expected to, but can be held liable, if they do not apply the leaves correctly and deny an employee a statutorily protected right. For example, FMLA now has a section entirely dedicated to military leave and circumstances that warrant leave for an employee who is a family member of a military serviceman or woman. Moreover, when an employee’s leaves under FMLA/CFRA expire, the employer is then confronted with a whole new set of rights and obligations under the American with Disabilities Act (ADA) and Fair Employment in Housing Act (FEHA) which require employers to engage in a timely, good faith interactive process. Moreover, the new CFRA regulations restrict how often employers can request a certification and an employer’s ability to contact an employee’s doctor to seek clarification about the employee’s work restrictions. But what if the employer is confronted with a situation of revolving doctor notes and there is no end in sight? How much leave does an employer have to provide before it becomes unreasonable? And how do you respond to the employee who demands that the employer pay the costs for an accommodation that the employer feels is an unreasonable expense for the agency to absorb?
And where does workers’ compensation fit in to all of this? Workers’ compensation claims can take years to litigate. What is the employer required to do with the disabled employee who cannot return to his/her essential job duties during this time? The worker’s compensation attorney may be telling the employer that the employee cannot be separated until the claim is either accepted or denied or a specific treatment is authorized. But how long will that take? And then what? Does the employer have to wait until all treatment options are exhausted? All the while, the department head is getting frustrated because the employee has been on leave for six months with no indication of return and wants to terminate him/her. The job must get done! And, if you have public safety officers, where does 4850 leave tie in? And what benefits need to be provided during all of these different leaves?
And what happens when the interactive process breaks down and no reasonable accommodation is available or the employee refuses a vacant alternate position? Can the employer terminate the employee? Where does disability retirement come in and what due process is owed to the employee? And what if somewhere in all of this, the employee commits an act of misconduct – can the employer terminate now? Like the seemingly never ending freeways – where does it end?!
First – Remain calm!
Second – Determine which leaves apply and when. It may be helpful to create a timeline detailing all of the applicable leaves and how much time they afford the employee.
Third – Gather all of the relevant documentation. Do you have all of the information you need to designate the leave as FMLA/CFRA or to engage in the interactive process.
Fourth – Once the need for reasonable accommodation arises either by the employee’s request or by the employer’s knowledge of the employee’s disability, the employer must engage in the interactive process. It is as follows:
Analyze job functions and establish essential and nonessential job tasks;
Identify precise limitations of the position held by the employee;
Identify possible accommodations and assess how each will enable the employee to successfully perform the position; and
Consider the preference of the employee or applicant to be accommodated and implement the accommodation that is most appropriate for both the employee/applicant and the employer.
In selecting from among several alternatives of reasonable accommodation, the expressed choice of the employee/applicant must be given primary consideration unless another equally effective accommodation exists which may be utilized instead.