Anxiety, Workplace Stress and PTSD: HR’s Accommodation and ...

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Anxiety, Workplace Stress and PTSD: HR’s Accommodation and Performance

Management Roadmap

Thursday, December 15, 2016 1:30 p.m. to 3:00 p.m. Eastern

12:30 p.m. to 2:00 p.m. Central 11:30 a.m. to 1:00 p.m. Mountain 10:30 a.m. to 12:00 p.m. Pacific

Presented by:

Patrice Nagle, Esq. Fisher Phillips LLP

This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI website at www.hrci.org.

Anxiety, Workplace Stress and PTSD: HR’s Accommodation and Performance

Management Roadmap Presented by:

Patrice Nagle, Esq. Fisher Phillips LLP

December 15, 2016

INTRODUCTION

•Mental illness can present unique challenges to employment. Unlike physical disabilities that can be seen and recognized, employers may not realize that a person with a mental health condition is experiencing an issue and needs a workplace accommodation to remain employed and productive.

• Also, unlike a physical disability that may be permanent, shifts in mental health can trigger and recede without warning.

WHAT LAWS APPLY?

•Americans with Disabilities Act (“ADA”)

•Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”)

•Family and Medical Leave Act (“FMLA”)

•Federal Rehabilitation Act of 1973

•Applicable state laws

ADA PROTECTIONS PRE-ADAAAThe ADA protects:

• Qualified individuals “with a disability”

• Who can perform the “essential functions” of the job

• With or without reasonable accommodation

To succeed on a claim of disability discrimination, a plaintiff must show:

• He/she was disabled AND

• He/she can perform essential job functions with or without reasonable accommodations

*** Under the pre-amendment standard, mitigating measures were to be taken into account when determining whether an individual had a disability.

WHY DID CONGRESS ENACT THE ADAAA?

•Most ADA cases failed (95%) because Plaintiffs were unable to prove that they were disabled, as defined by the ADA

•Plaintiffs were either not “disabled” enough to be protected by the ADA OR Plaintiffs were too disabled to be considered qualified for the job.

ADAAA: WHAT CHANGED?

1. “Mitigating Measures” can no longer be considered

• The ADAAA specifically provides that a court must determine whether an impairment substantially limits a major life activity “without regard to the ameliorative effects of mitigating measures”

• “Mitigating Measures” include: medication, artificial aids, assistive technology, reasonable accommodations, and learned behavioral or adaptive neurological modifications.

*** Adverse side effects must still be considered


2. The Act now covers individuals whose impairments are episodic or in remission.

• BEFORE: Plaintiffs had difficulty establishing that an impairment was substantially limiting when the condition was in remission or episodic.

• NOW: An episodic impairment or an impairment that is currently in remission is a disability if it would substantially limit a major life activity when active.


3. The definition of “substantially limits” was revised.

• BEFORE: Supreme Court had defined the term as an impairment that “prevents or severely restricts” an individual from performing a major life activity.

• NOW: ADAAA doesn’t directly define the term; instead Congress directed the EEOC to define the term in keeping with the intent of broad coverage.

EEOC says an impairment is a disability if it “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population.

ADAAA: WHAT CHANGED?4. Expanded list of “Major Life Activities”

• The Act states: “Major life activities include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. (please note, underlined words are new)

• The EEOC has also added sitting, reaching and interacting with others.

• The ADAA also clarifies that “major life activities” includes: the operation of major bodily functions, including: Immune system functions, normal cell growth, digestive, bowel, bladder, neurological, respiratory, circulatory, endocrine, and reproduction functions.


5. The ADAAA also radically expanded the definition of “regarded as” disabled.

• BEFORE: Most courts held that an employee had an impairment that substantially limited a major life activity for the employee to be “regarded as” disabled.

• AFTER: An employee is now “regarded as” disabled and thus entitled to protection from discrimination if the employer believes the employee has any mental or physical impairment regardless of whether the employer believes the impairment limits a major life activity.

SO WHO IS DISABLED?

EVERYBODY!!!!ADAAA defines disability as “physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.”

• The amended definition is very broad, and changed the focus to whether discrimination occurred, rather than whether Plaintiff is disabled.

• Consequently, virtually all non-minor physical or mental disorders are likely to qualify as disabilities.

• Examples: back problems, diabetes, heart conditions, carpal tunnel, arthritis, migraines, depression, anxiety, obsessive-compulsive disorder and PTSD.

MENTAL IMPAIRMENTS UNDER THE ADAAA

• Similarly, the ADAAA and EEOC regulations define “mental impairment” very broadly to cover “any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.”

• HOWEVER, common personality traits such as poor judgment, quick temper, chronic lateness, irritability, and inability to get along with others still do not constitute impairments when they are not symptoms of a mental or psychological disorder.

DISCLOSURE OF DISABILITY

WHEN MAY AN EMPLOYER ASK AN INDIVIDUAL ABOUT A PSYCHIATRIC DISABILITY UNDER THE ADA?

1. Application Stage?

2. Before making a job offer?

3. After making an offer?

4. During employment?

KNOWN DISABILITIES: TWO GENERAL REQUIREMENTS

When it comes to employees and applicants with known disabilities, the ADA requires that:

1. Employers engage in a timely, good faith interactive process with employees/applicants in need of reasonable accommodations

2. Employers provide reasonable accommodation for those applicants and employees who, because of their disability, are unable to perform the essential functions of their job

REQUESTING REASONABLE ACCOMMODATIONS

REQUESTING REASONABLE ACCOMMODATIONS

An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability unless it can show that the accommodation would impose an undue hardship.

WHAT MUST AN EMPLOYEE SAY TO MAKE THE REQUEST AND START THE REASONABLE ACCOMMODATION PROCESS?

• The individual, or his/her representatives, must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.”

• A “representative” may be a family member, friend, health professional, or other representative acting on behalf of the employee. An employee may refuse to accept an accommodation that is not needed.

DO REQUESTS FOR ACCOMMODATION NEED TO BE IN WRITING?

No. Requests for reasonable accommodations do not need to be in writing. Employees may request accommodations in conversation or may use any other mode of communication.

WHEN SHOULD AN INDIVIDUAL WITH A DISABILITY REQUEST AN ACCOMMODATION?

An employee with a disability is not required to request a reasonable accommodation at the beginning of employment. S/he may request a reasonable accommodation at any time during employment.

MAY THE EMPLOYER ASK AN EMPLOYEE FOR DOCUMENTATION WHEN THE EMPLOYEE REQUESTS REASONABLE ACCOMMODATION FOR THE JOB?

• Yes. When the need for accommodation is not obvious, an employer may ask an employee for reasonable documentation about his/her disability and functional limitations.

• The employer is entitled to know that the employee has a covered disability for which s/he needs a reasonable accommodation. A variety of health professionals may provide such documentation with regard to psychiatric disabilities.

MAY AN EMPLOYER REQUIRE AN EMPLOYEE TO GO TO A HEALTH CARE PROFESSIONAL OF THE EMPLOYER’S CHOICE FOR PURPOSES OF DOCUMENTING NEED FOR ACCOMMODATION AND DISABILITY?

• Yes, if the employee initially provides insufficient information to substantiate that s/he has an ADA disability and needs a reasonable accommodation.

• Of course, any examination must be job-related and consistent with business necessity.

• If an employer requires an employee to go to a health professional of the employer’s choice, the employer must pay all costs associated with the visit(s).

INTERACTIVE PROCESS

INTERACTIVE PROCESS

•An employer must engage in a good-faith interactive process to determine if there is a reasonable accommodation that would allow the applicant or employee to obtain or maintain employment

•Cooperative process between employer and employee

INTERACTIVE PROCESS: WHEN IS THE DUTY TRIGGERED?

• Employer must initiate the process if:

• the employee’s disability is known or apparent

• The employee tells the employer

• The employer otherwise becomes aware of the condition, such as through a third party or by its own observation

** Employee’s obligations to cooperate do not arise until the employer has first met its burden of initiating the interactive process

INTERACTIVE PROCESS: STEP 1

Determine the essential functions of the position

• This is an important part of the interactive process because in a disability discrimination case, the employer has the duty to identify the essential functions, and employee has the burden to show he/she can perform all the essential functions.

• The employer should attempt to obtain the employee’s agreement regarding the job functions

INTERACTIVE PROCESS: STEP 2• Consult with disabled employee regarding limitations

• Ascertain the precise job-related limitations

• Discuss how those limitations could be overcome

• Request appropriate medical documentation

• Limited to information about the disability and its functional limitations

• Only request records where disability is not obvious

• May ask the individual to sign a limited release allowing employer to submit a list of specific questions to the healthcare professional

If employee provides insufficient information from his or her treating physician, employer may require individual to visit a healthcare professional of employer’s choice.


Identify potential accommodations

• Ask the employee for proposed accommodations

• Assess the effectiveness each proposed accommodation would have in enabling the individual to perform the essential functions of the position.


•Select and implement the accommodation that is most appropriate for both the employee and employer.

•Consider the employee’s preference

•However, do not just accede to the employee’s request

INTERACTIVE PROCESS: AN ONGOING OBLIGATION

• The employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation.

• The obligation continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.

Example: Medical transcriber with OCD requested that she be allowed to work from home.Employer denied, and refused to discuss further, arguing that it had already engaged ininteractive process and had offered the employee a flexible start time.

Court held that the employer had a continuing obligation to attempt to find an accommodation that would work for both parties. Humphrey v. Memorial Hosp., 239 F.3d 1128 (9th Cir. 2001.)

REASONABLE ACCOMMODATIONS

REASONABLE ACCOMMODATION

• Reasonable accommodation is any appropriate measure that would allow the applicant or employee with the disability to perform the essential functions of the job.

• Reasonable accommodations for individuals with disabilities must be determined on a case-by-case basis because workplaces and jobs vary, as do people with disabilities.

• Accommodation duty applies to all applicants and employees, whether full or part-time.

• Accommodation is not required if it amounts to an undue hardship.

TYPES OF REASONABLE ACCOMMODATIONS1. Making facilities accessible

2. Job restructuring

2. Modified work schedules

3. Work-at-home arrangements

4. Transfer or reassignment

5. Leaves of absence

6. Acquiring/modifying equipment/devices

7. Adjusting/modifying exams, policies, training, supervision practices

8. Providing qualified readers or interpreters

9. Residual effects of disability (doctor visits, etc.)

REASONABLE ACCOMMODATION: NO UNDUE HARDSHIP

Factors for determining whether an accommodation would be an undue hardship (case by case basis):

The nature and net cost of accommodation

The financial resources of the facility

The number of employees at the facility

Overall financial resources of the entity

JOB RESTRUCTURING

• Employer must reallocate nonessential job functions or alter when/how they are performed

Example: Assign other employees to run a high-speed scanner (marginal function)

• Employer need not change “essential functions”

Example: Handling telephone calls is an essential function of a customer service representative who is subject to panic attacks. The employer is not required to assign her to non-telephone duties.

MODIFIED WORK SCHEDULE

• Permitting the use of accrued paid leave or providing additional unpaid leave for treatment or recovery related to disability is a reasonable accommodation, unless (or until) the employee’s absence imposes an undue hardship on the operation of the employer’s business.

• A related accommodation is to allow an individual with a disability to change his/her regularly scheduled working hours. Some medications taken for psychiatric disabilities cause extreme grogginess and lack of concentration in the morning. Depending on the job, a later schedule may enable the employee to perform essential job functions.

WORK AT HOME

•Reasonable when the essential functions can be performed at home and would not cause undue hardship

•Not reasonable where the job requires close supervision, or the essential functions of the job involve teamwork and coordination with others at workplace

TRANSFER OR REASSIGNMENT

• Transfer/Reassignment is a “Last Resort”

• Transfer/reassignment should be considered if employee cannot perform functions of current job with some other reasonable accommodation

• Transfer should be to a position that is vacant.

• Employee must be qualified to perform the new position

• Transfer can be to a position that pays less, but only if no accommodation can be made in current position, and no positions are vacant at same level.

TRANSFER OR REASSIGNMENT

Employer does not need to bump any employee from a job in order to create a vacancy

BUT

Disabled employee is entitled to “preferential consideration” in reassignment of existing employees.

LEAVE OF ABSENCE

Unpaid leave is reasonable when employee expects to return to work after:

•Getting treatment for a disability, recovering from illness, training a guide dog, etc.

• Alcohol or drug rehabilitation program.

California employers must reasonably accommodate any employee who wishes to voluntarily enter drug/alcohol rehab.

CHANGES TO THE WORKPLACE OR EQUIPMENT• Simple physical changes to the workplace may be effective accommodations.

• For example, room dividers, partitions, or other soundproofing or visual barriers between workspaces may accommodate individuals who have disability-related limitations in concentration. Moving an individual away from noisy machinery or reducing other workplace noise that can be adjusted (lowering sound from telephones) are similar reasonable accommodations.

• Some individuals who have disability-related limitations in concentration may benefit from access to equipment like a tape recorder for reviewing events such as training sessions or meetings.

MODIFYING WORKPLACE POLICIES

It is a reasonable accommodation to modify a workplace policy when necessitated by an individual’s disability-related limitations, barring undue hardship.

• For example, it would be a reasonable accommodation to allow an individual with a disability, who has difficulty concentrating due to the disability, to take detailed notes during client presentations even though company policy discourages employees from taking extensive notes during such sessions.

• Further, granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies.

ADJUSTING SUPERVISORY METHODS

• Supervisors play a central role in achieving effective reasonable accommodations for their employees. In some circumstances, supervisors, may be able to adjust their methods as a reasonable accommodation by, for example, communicating assignments, instructions, or training by the medium that is most effective for a particular individual (e.g., in writing, in conversation, or by electronic mail). Supervisors may also provide or arrange additional training or modified training materials.

• Adjusting the level of supervision or structure sometimes may enable an otherwise qualified individual with a disability to perform essential job functions. For example, an otherwise qualified individual with a disability who experiences limitations in concentration may request more detailed day-to-day guidance, feedback, or structure in order to perform his job.

JOB COACH/INTERPRETER/QUALIFIED READERS

• An employer may be required to provide a temporary job coach, interpreter, or qualified reader to assist a qualified individual with a disability as a reasonable accommodation, barring undue hardship.

• An employer also may be required to allow a job coach, interpreter, qualified reader paid by a public or private social service agency to accompany the employee at the job site as a reasonable accommodation.

ACCOMMODATIONS THAT ARE NOT REQUIRED1. Eliminating a job’s essential functions

2. Providing a stress-free environment

3. Risking the lives and safety of your workforce

4. Providing a new boss to an employee who cannot get along with his or her old one

5. Rescinding discipline

6. Creating a new position

7. Allowing indefinite leaves of absence

8. Violating other employees’ seniority rights

9. Lowering production standards

10.Allowing the use of illegal drugs (including medical marijuana)

RISKING THE LIVES AND SAFETY OF YOUR WORKFORCE: DIRECT THREAT

Under the ADA, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a “direct threat.”

The EEOC’s ADA regulations explain that “direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

A “significant” risk is a high, and not just a slightly increased, risk. The determination that an individual poses a “direct threat” must be based on an individualized assessment of the individual’s present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.

An individual does not pose a “direct threat” simply by virtue of having a history of psychiatric disability or being treated for a psychiatric disability.

EXAMPLE 1 – DIRECT THREAT

An individual receive an offer for a job in which she will operate an electric saw, conditioned on a post-offer medical examination. In response to questions at this medical examination, the individual discloses her psychiatric disability and states that she takes a medication to control it. This medication is known to sometimes affect coordination and concentration. The company doctor determines that the individual experiences negligible side effects from the medication because she takes a low dosage. She also has an excellent safety record at a previous job, where she operated similar machinery while taking medication. NOT A DIRECT THREAT.

EXAMPLE 2 – DIRECT THREAT

An individual applies for a position with Company X. When the HR Manager from Company X checks his employment background, she learns that he was terminated two weeks ago by another employer, after he told a co-worker that he would get a gun and “get his supervisor if he tries anything again.” Company X also learns that these statements followed three months of escalating incidents in which this individual had had several altercations in the workplace, including one in which he had to be restrained from fighting with a co-worker. He then revealed his disability to his previous employer. After being given time off for medical treatment, he continued to have trouble controlling his temper and was seen punching the wall outside his supervisor’s office. Finally, he made the threat against his supervisor and was terminated. Company X learns that, since then, he has not received any further medical treatment. Company X does not hire him because he poses a direct threat. This individual poses a DIRECT THREAT.

RESCINDING DISCIPLINE IS NOT REQUIREDExample: An employer disciplines an employee for poor performance; the employee notifies employer of disability and requests reasonable accommodation.

EMPLOYER NEED NOT:

• Tolerate or excuse the poor performance

• Withhold the disciplinary action (including termination)

• Raise a performance rating

• Give an evaluation that doesn’t reflect actual performance

BUT EMPLOYER MUST:

Begin the interactive process if discipline was other than termination, by discussing with employee how the disability affects performance and what accommodation may help improve it.

LEAVE OF ABSENCE: INDEFINITE LEAVE IS NOT REQUIRED

• How does Employer know when a request for more and more leave has turned into a request for “indefinite” leave?

• Employer should seek medical documentation regarding:

• The reason why earlier predictions on return turned out to be wrong

• Basis for doctor’s conclusion that an additional period of leave will enable employee to return to work at conclusion of leave.

• Will providing additional leave amount to an “undue hardship?”

DISCIPLINING EMPLOYEES WITH DISABILITIES

DISCIPLINING AND TERMINATING DISABLED EMPLOYEES

• Nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property.

• An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.

• Other conduct standards, however, may not be job related for the position and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA.

DISCIPLINING AND TERMINATING DISABLED EMPLOYEESConditions often related to employee misconduct:

• Bipolar Disorder (outbursts, violent threats)• Depression (attitude, interaction with others)• Obsessive-Compulsive Disorder (tardiness, unproductively)• Epilepsy• Diabetes• Narcolepsy and sleep disorders

• These conditions may manifest as violent outbursts, threats, poor attitude, tardiness, un-productivity, insubordination, sleeping on the job, accidents, and more.

• Marked shift in the law from misconduct is not protected even though related to a disability TO misconduct may be protected if it grows out of a disability

STRESS CLAIMS UNDER THE ADA

IS STRESS A VALID CLAIM UNDER THE ADA?

• Plaintiff citing stress as the basis for a claim under the ADA and equivalent state laws is on the rise.

• Stress in the form of annoyances, deadlines, and pressure is often part of any job and will not invoke a legal obligation for the employer to intervene on the employee’s behalf.

•On the other hand, pervasive stress that appears to limit an employee’s ability to function either at work or at home may be a protected disability under both state and federal law.

HOW ARE COURTS VIEWING STRESS CLAIMS UNDER THE ADA?• Recently, courts have regularly concluded that stress and anxiety, under certain

circumstances, can rise to the level of a protected legal disability, reasoning that stress and anxiety are mental impairments that can substantially interfere with an employee’s daily ability to function.

• Garden-variety stress and anxiety may be a sign of a more significant issue, such as post-traumatic stress disorder, chronic panic attacks, or insomnia.

• Stress can also exacerbate or be secondary to other medical conditions that may qualify as a disability or serious medical condition themselves. For example, employees in several cases have argued that stress at work worsened their Crohn’s disease symptoms, which in turn inhibited their ability to do their job.

HOW ARE COURTS VIEWING STRESS CLAIMS UNDER THE ADA?

•When an employee requests an accommodation or you areaware of an employee’s disability, including one relating tostress, you must engage in an “interactive process”.

• The process should be a back-and-forth that explores theemployee’s work challenges and how those issues can beresolved without creating an undue burden on the business. Thisconversation should be held outside the presence of peers or co-workers.

HOW ARE COURTS VIEWING STRESS CLAIMS UNDER THE ADA?• There are limits – and the courts have provided some guidance.

• Courts have held that employers are not required to transfer employees because they do not get along, and that employees are not entitled to a new boss simply because their current supervisor stresses them out.

• Employers are also not required to allow employees to smoke medical marijuana (or the recreational variety), even on their own time, to accommodate a health condition like stress, as marijuana is still illegal under federal law.

THE FAMILY AND MEDICAL LEAVE ACT (“FMLA”)

FMLA LEAVE

Although disability laws are the most important when it comes to determining whether and how to accommodate stress issues, employers should also consider the applicability of protected leave laws.

FMLA LEAVE

• Who is entitled to FMLA benefits?

• What does the FMLA authorize?

• What constitutes a “serious health condition” under the FMLA?

• Can “Stress” qualify as a serious health condition under the FMLA?

• Generalized complaints of stress will not suffice as a serious health condition.

• Do mental health conditions resulting from stress constitute serious health conditions?

• How can employers curb Employee FMLA abuse?

CONFIDENTIALITY OF INFORMATION

CONFIDENTIALITY

• Information about an employee’s reasonable accommodation must be kept confidential

• Exception: Information may be disclosed to supervisors and managers for necessary work restrictions or reasonable accommodations

• Exception: Information may be disclosed to individuals involved in making decisions about reasonable accommodations.

• Exception: Where necessary for emergency treatment; to officials investigating compliance with Rehabilitation Act; for workers’ compensation and insurance purposes

CONFIDENTIALITY

•Many agencies have someone other than employee’s immediate supervisor review documentation supporting accommodation requests

•Where this is done, a supervisor will receive only information necessary to provide accommodation

• Agencies should be careful not to have individuals review reasonable accommodation requests if they may also be involved in an EEO complaint related to the request.

PRACTICAL ADVICE FOR DIFFICULT SITUATIONS

TERMINATING SOMEONE WHILE ON LEAVE

• Appears almost always bad

• How close in time with the discharge be?

• Request for leave

• Being on leave

• Return date from leave

• The closer the proximity, the greater the inference of retaliation

WHY MIGHT YOU TERMINATE SOMEONE ON LEAVE?

1. Misconduct

2. Poor Performance

3. RIF/Job Elimination

CAREFUL OF MISCONDUCT TERMINATIONS• Ask when?

• Committed before request or commencement of leave?

• Discovered after request or commencement of leave?

• Actions subject to attack

• Was it really discovered afterwards? Or just “used” to retaliate?

• Elevates importance of documentation

• Date of discovery/initiation/completion/substance of investigation

• Consider timing of announcement – when is enough?

BE EVEN MORE CAREFUL TERMINATING LEAVE-TAKERS FOR POOR PERFORMANCE• “We knew he wasn’t cutting it, but just hadn’t gotten around to dealing with it.

Before he disappears for 12 weeks, this seems like a good time.”

• Was employee on any notice?

• Record of counseling?

• Documentation?

• Deadline to improve?

• Performance Improvement Plan (“PIP”)?

• If not, now is almost certainly NOT a good time!

• Invites VERY BAD litigation experience

THE LEAVE-TAKER WHO CAN’T RETURN

• Employers cannot automatically terminate employees who don’t return

• EEOC will sue if you have such a policy

• Need individual determination of why employee didn’t return

• Additional leave must be considered as a possible accommodation

• No absolute time limit on ADAAA accommodation leave

THE “TRADE UP IN QUALITY” FAILURE-TO-REINSTATE

• Temporary replacement was outstanding, performed much better than regular employee

• Employer keeps replacement in job

• Employer offers to reinstate leave-taker to another position

• Employer thinks its move is defensible because the alternative position is “substantially equivalent”

• Leave-taker doesn’t agree

• NOT a good idea!!!

IF HE’S BEEN DECLARED “PERMANENTLY DISABLED” WHY DO WE HAVE TO REINSTATE HIM?

•Worker’s Comp awards made because employee “totally disabled” or has a “permanent disability”

SO: Why reinstate if state agency has declared employee legally unable to work?

•Workers Comp laws may differ state-to-state, but all use different standards than FMLA and ADA• Ability to perform essential functions of the job with or without

accommodation• Individualized determination required

FINAL TIPS - TRAIN & WATCH YOUR SUPERVISORS

• Supervisor to employee:

• “Those dates you say you need to take off are a terrible time for our business to have to deal with being short-staffed.”

• “Are you sure you need that much time off?”

• “Accommodation? You want us to hire someone else to do the parts of your job you don’t like?”

• Employees remember and comments are likely to appear verbatim in the lawsuit

• *Remedy: Train managers – particularly front-line supervisors

QUESTIONS?

Patrice C. Nagle

Fisher & Phillips, LLC

(858)597-9638; [email protected]

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Disclaimers

*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

Patrice Nagle is based in Fisher Phillips’ San Diego office where her practice involves representing and counseling employers in all

aspects of labor and employment law, including wrongful termination, employment discrimination, workplace harassment, retaliation, employment handbook and personnel policy preparation, and general preventive advice. Prior to joining Fisher Phillips, Ms. Nagle was an associate at a San Diego based law firm specializing in the representation of public school districts and private education institutions. During this time, she gained experience litigating matters in state and federal courts, state administrative tribunals, such as the Office of Administrative Hearings, and in arbitration.

Patrice Nagle, Esq.

Anxiety, Workplace Stress and PTSD: HR’s Accommodation and ...

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