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LEGAL EXPOSURE LEGAL EXPOSURE REDUCTIONREDUCTION

County Supervisors’ Role County Supervisors’ Role and Responsibilities Underand Responsibilities Under

ADA & FEHAADA & FEHAFor Purposes of Reasonable AccommodationFor Purposes of Reasonable Accommodation

Present by:Present by:

Steve Morris, County CounselSteve Morris, County CounselCathy Stein-Romo, Chief Executive Office, Risk ManagementCathy Stein-Romo, Chief Executive Office, Risk Management

Maryetta Hall, Department of Human ResourcesMaryetta Hall, Department of Human Resources

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PURPOSEPURPOSE

The County of Los Angeles has a population of over The County of Los Angeles has a population of over 10 million people receiving services from 37 County 10 million people receiving services from 37 County Departments with over 100,000 County employees.Departments with over 100,000 County employees.

This workshop was developed in response to a This workshop was developed in response to a Board of Supervisors Directive. In the course of Board of Supervisors Directive. In the course of having to approve several very costly legal having to approve several very costly legal settlements, the Board determined that LACO settlements, the Board determined that LACO supervisors would benefit from training in effective supervisors would benefit from training in effective management techniques and their responsibilities management techniques and their responsibilities as supervisors/managers under the Americans with as supervisors/managers under the Americans with Disabilities Act (ADA) and California Fair Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA).Employment and Housing Act (FEHA).

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Legal Exposure Reduction and Legal Exposure Reduction and Reasonable Accommodation under Reasonable Accommodation under

ADA/FEHAADA/FEHA Define supervisors’ role in reducing legal Define supervisors’ role in reducing legal

exposure in ADA/FEHA employment casesexposure in ADA/FEHA employment cases Distinguish differences between the ADA and Distinguish differences between the ADA and

FEHAFEHA Explain why ADA/FEHA litigation is on the riseExplain why ADA/FEHA litigation is on the rise Discuss the factors driving costs of employment Discuss the factors driving costs of employment

litigationlitigation Explain the strategy to manage risk through Explain the strategy to manage risk through

proper documentationproper documentation Apply County policies and guidelines relating to Apply County policies and guidelines relating to

disability managementdisability management

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Describe and define appropriate terms and Describe and define appropriate terms and acronyms relating to ADA/FEHA and acronyms relating to ADA/FEHA and disability managementdisability management

Recognize the triggers for engaging in the Recognize the triggers for engaging in the interactive processinteractive process

Define reasonable accommodationDefine reasonable accommodation Describe the important steps to the Describe the important steps to the

Interactive process meetingInteractive process meeting Learn how to effectively document the Learn how to effectively document the

interactive processinteractive process Utilize the resources available to assist Utilize the resources available to assist

supervisors in managing employees with supervisors in managing employees with disabilitiesdisabilities

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RISK MANAGEMENT TRAINING RISK MANAGEMENT TRAINING FOR SUPERVISORS AND FOR SUPERVISORS AND

MANAGERSMANAGERS

OVERVIEW OF OVERVIEW OF TRAININGTRAINING PROGRAMPROGRAM

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EMPLOYMENT EMPLOYMENT LITIGATIONLITIGATION IS BIG IS BIG BUSINESSBUSINESS

Documentation is Documentation is crucial to crucial to management of management of County workplace.County workplace.

We call it We call it “evidence” in “evidence” in court!court!

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DOCUMENTATION IS DOCUMENTATION IS ESSENTIAL IN BOTH:ESSENTIAL IN BOTH:

Complying with accommodation Complying with accommodation requirements in disabilities law requirements in disabilities law (ADA/FEHA).(ADA/FEHA).

Performance management, including Performance management, including progressive discipline, when progressive discipline, when necessary.necessary.

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DOCUMENTATIONDOCUMENTATIONIS A LIFE SAVERIS A LIFE SAVER!!

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Part IPart ITHE LEGAL LANDSCAPETHE LEGAL LANDSCAPE

Everything You Always Wanted to Everything You Always Wanted to Know About ADA/FEHA Litigation*Know About ADA/FEHA Litigation*

*…..but were afraid to ask…..*…..but were afraid to ask…..

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AN ADA PRIMERAN ADA PRIMER

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Under the Americans with Disabilities Under the Americans with Disabilities Act (“ADA”) and California’s, Fair Act (“ADA”) and California’s, Fair Employment and Housing Act Employment and Housing Act (“FEHA”), employers (“FEHA”), employers must must engage in engage in a a promptprompt Interactive Interactive Process Process to to explore Reasonable Accommodation explore Reasonable Accommodation of an employee’s or applicant’s of an employee’s or applicant’s knownknown disabilitydisability..

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This is an This is an expressexpress requirement under requirement under FEHA.FEHA.

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Failure to show prompt Interactive Failure to show prompt Interactive Process is a common violation, and is Process is a common violation, and is easily recognized by investigating easily recognized by investigating enforcement agencies: enforcement agencies: U.S. Equal Employment Opportunities U.S. Equal Employment Opportunities

Commission (EEOC) for Federal ADA Commission (EEOC) for Federal ADA Department of Fair Employment and Department of Fair Employment and

Housing (DFEH) for State of CaliforniaHousing (DFEH) for State of California

ADA and FEHA

How Supervisors Can How Supervisors Can Help Help OrOr Hurt Hurt

Missing signals for interactive Missing signals for interactive processprocess

Mixing ADA and performance issuesMixing ADA and performance issues Not being reasonable in Not being reasonable in

accommodationaccommodation

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Employer must consider all Employer must consider all information provided but does not information provided but does not have to offer the exact have to offer the exact accommodation requested so long as accommodation requested so long as somesome Reasonable Accommodation is Reasonable Accommodation is offered and clearly documentedoffered and clearly documented..

Both employer AND employee must Both employer AND employee must interact in good faith.interact in good faith.

To be reasonable, an accommodation To be reasonable, an accommodation must be effective. That means, the must be effective. That means, the reasonable accommodation must reasonable accommodation must enable the employee to perform the enable the employee to perform the essential functions of the job.essential functions of the job.

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The return of an employee with work The return of an employee with work restrictions (medical certification/doctor’s restrictions (medical certification/doctor’s note) is tantamount to a request for note) is tantamount to a request for Reasonable Accommodation and Reasonable Accommodation and mustmust trigger a prompt Interactive Process.trigger a prompt Interactive Process.

ADA/FEHA Requirement of timely ADA/FEHA Requirement of timely Interactive must never be delayed by the Interactive must never be delayed by the Workers’ Compensation process. They are Workers’ Compensation process. They are two independent legal schemes.two independent legal schemes.

Interactive process is not a one time Interactive process is not a one time meeting; it is an ongoing process.meeting; it is an ongoing process.

Civil Service Rule 9.08Civil Service Rule 9.08 County Employee Retirement Law of County Employee Retirement Law of

1937 (“CERL”)1937 (“CERL”)

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3 Questions3 Questions

1.1. Why are there so many ADA/FEHA lawsuits?Why are there so many ADA/FEHA lawsuits?

2.2. Why is ADA/FEHA litigation so expensive?Why is ADA/FEHA litigation so expensive?

3.3. How Can the County win a jury trial?How Can the County win a jury trial?

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#1#1Why Are There So Many Why Are There So Many

ADA/FEHA LawsuitsADA/FEHA Lawsuits??

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County is a BIG employer, therefore a County is a BIG employer, therefore a big targetbig target

Huge growth in ADA/FEHA cases: Huge growth in ADA/FEHA cases: The The Word is Out!Word is Out!

Fact intensive cases go to juryFact intensive cases go to jury Successful plaintiffs get attorney’s Successful plaintiffs get attorney’s

feesfees

Why Are There So Many Lawsuits?

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#2#2Why is ADA/FEHA Litigation Why is ADA/FEHA Litigation

So Expensive?So Expensive?

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Successful plaintiffs get attorney’s feesSuccessful plaintiffs get attorney’s fees ADA/FEHA cases are fact intensiveADA/FEHA cases are fact intensive Long employment history may be involvedLong employment history may be involved Cases are document driven: personnel files Cases are document driven: personnel files

may be extensivemay be extensive Complex Interaction with other Laws (FMLA, Complex Interaction with other Laws (FMLA,

Workers’ Compensation)Workers’ Compensation) E – DiscoveryE – Discovery Personal liability of supervisorsPersonal liability of supervisors

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How many $100,000 decisions have you How many $100,000 decisions have you made today?made today?

DECISION TIME

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#3#3How Can The County Win A How Can The County Win A

Jury Trial?Jury Trial?

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The ChallengesThe Challenges

Jurors tend to be employees, not Jurors tend to be employees, not employersemployers

Popular culturePopular culture Negative imagesNegative images Employment law is complexEmployment law is complex Things juries hateThings juries hate Medical confidentialityMedical confidentiality The perils of E-mailThe perils of E-mail

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The Perils of E-MailThe Perils of E-Mail

How can I ruin myreputation and Cost

the County money?

“We can’t let these cheating

employees and their doctors get away with this”

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Important TipsImportant Tips Document the Interactive ProcessDocument the Interactive Process All documents should tell a storyAll documents should tell a story Be prompt – timeliness is criticalBe prompt – timeliness is critical Be nice – “How can I help?”Be nice – “How can I help?” Be ConsistentBe Consistent Keep them on the jobKeep them on the job Look for early resolution – Look for early resolution – Be proactiveBe proactive

How County Can Win a Jury Trial

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Legal DocumentationLegal DocumentationA written record of events is the best evidence of A written record of events is the best evidence of what occurred, and the record can be requested for what occurred, and the record can be requested for identification and disclosure in litigation. identification and disclosure in litigation. Documentation is most commonly used as Documentation is most commonly used as evidence:evidence:

To tell the story of what occurred.To tell the story of what occurred. To document that a specific decision was made To document that a specific decision was made

objectively, consistently and in accordance objectively, consistently and in accordance with all County policies.with all County policies.

To refresh the memory of a witnessTo refresh the memory of a witness To provide a trigger to follow-up by including a To provide a trigger to follow-up by including a

Plan of ActionPlan of Action To establish knowledge, notice, intent, and To establish knowledge, notice, intent, and

good-faith.good-faith. Helps keep ADA/FEHA separate from Helps keep ADA/FEHA separate from

performance issues.performance issues.

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Exercise IExercise IEmployee has twice asked for and Employee has twice asked for and received an ergonomic chair. The received an ergonomic chair. The employee is now missing a lot of work employee is now missing a lot of work through unexpected absences and through unexpected absences and tardiness. When you try to address tardiness. When you try to address attendance, the employee says they attendance, the employee says they need another chair and special lamp need another chair and special lamp and keyboard. What do you do?and keyboard. What do you do?

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Which chair would you buy?Which chair would you buy?

$300 $300,000$300 $300,000

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BreakBreak