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Thursday
Dec292016

Employer Responsibilities re Mental Health Conditions

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

The Equal Employment Opportunity Commission recently issued a “User-Friendly Document” explaining the rights of job applicants and employees with mental health conditions. In doing so, the EEOC has confirmed that individuals with such conditions are protected from discrimination and harassment.

Employment Law Mental Health Disability

As noted, employers cannot fire, deny a job, deny a promotion or force an employee to take leave because of a mental health condition (there are exceptions when employees pose a “direct threat” to safety or cannot perform their jobs). The guidelines remind employers of the obligation to provide reasonable accommodations that would enable employees perform their jobs.

In our work advising and counseling employers, we often encounter employers who struggle with how to properly respond to disabled employees.

Whether it is an employee’s injury, mental health condition or stress, employers face confusion as to their legal obligations. Since failure to communicate and/or accommodate may sometimes result in costly litigation, we are providing a few basic guidelines to assist employers when facing similar issues.

Do not discriminate against employees with a mental or physical health condition:

Employers do not have to hire or retain employees in jobs they cannot perform, or employ people who pose a “direct threat” to safety (based on objective evidence, not merely myths and stereotypes). However, firing an employee or rejecting an applicant with a disability (whether physical or mental) is prohibited, unless the employee or applicant cannot perform the job with reasonable accommodation.

For example: Jane notified her employer she was depressed and needed two weeks off. Her employer believed depression was not a “real disease” and rejected Jane’s request without further discussion. When Jane failed to show up because of her condition, her employer fired her for unpermitted absence.

The employer’s actions in this scenario were potentially unlawful. When Jane gave notice of her mental condition and asked for accommodations in the form of time off, her employer was required to engage in an “interactive dialogue” (explained below) rather than rejecting her request for time off and then terminating her employment.

Even if you don’t believe an employee’s health condition and request for accommodation are legitimate, you must at least engage in an interactive dialogue. Under some circumstances (e.g., if the need for an accommodation is not obvious), you can ask the employee to provide reasonable medical documentation to confirm the existence of the disability and the need for reasonable accommodation.

Timely engage in “interactive dialogue” with the employee, even if the employee does not “officially” ask for accommodations:

This can be tricky. Under California law, an employer is required to initiate the interactive process when: (1) the employee requests an accommodation; or (2) the employer otherwise becomes aware of the need for an accommodation through a third party or by observation.

For example: Robert was cleaning a window when he fell off a ladder and hurt his hand. Emily, Robert’s supervisor, witnessed the incident. The next day, Robert came back to work with bandages on his hand. Robert never asked for an accommodation but was struggling with his usual manual tasks. As Robert never asked for an accommodation, Emily assumed Robert did not require one.

Emily assumed wrong. Since Emily witnessed the incident and saw Robert’s bandages she was on notice regarding his possible need for accommodations. Even if Robert did not need accommodations, it was Emily’s duty, as the employer, to engage in the interactive process with Robert to determine whether accommodations could be provided.

Even if the employee is not eligible for protected time off under the Family Medical Leave Act or California Family Rights Act, consider time off as reasonable accommodation:

Family and medical leave laws generally cover employers with 50 or more employees. However, even if you are not a covered employer, you may be large enough and must consider whether protected time off can be provided as a reasonable accommodation (See also 2 CCR 11065(p)(2)(M)).

Don’t rely on the undue hardship defense:

Generally, employers are not required to accommodate a disabled employee or applicant if the accommodation would cause an “undue hardship” to the employer. The term “undue hardship” generally means an accommodation that is unduly costly, extensive or substantial, or that would fundamentally alter the nature of the business’s operation. (See definition and factors to consider in 2 CCR 2 11065(r))

However, employers are advised to use the “undue hardship” defense narrowly and only when the accommodations might place extensive financial burden or would prevent the ongoing operation of the business. Further, employers should engage in the interactive dialogue before concluding an undue hardship exists.

For example, an applicant with a severe vision impairment applies for employment with a small market that has only four other employees. The applicant requires assistance to work the register by having another employee present at all times. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or could not afford the cost of remodeling to accommodate two employees at the same time. (From California Department of Fair Employment Housing guidelines).

Keep an employee’s mental or physical health condition confidential:

Medical information that employers obtain regarding the medical or mental conditions or history of an employee or applicant must be maintained in separate medical files and kept confidential. The employee’s medical information may be discussed only under the following circumstances:

1. Supervisors and managers may be informed of restriction(s) on the work or duties of employees with disabilities and necessary reasonable accommodations; and

2. First aid and safety personnel may be informed, where appropriate, that the condition may require emergency treatment; and

3. Government officials investigating compliance are to be provided relevant information on request. (See 2 CCR 11069(g))

Document, Document, Document:

We cannot emphasize this enough. A little documentation can go a long way.

When you meet with an employee as part of the interactive process, prepare a written summary of the meeting and indicate the reasonable accommodation options discussed. If you decide to grant the employee’s request, document that as well. If you deny the employee’s request because of undue hardship, put that in writing and explain the reasons for the denial. You should invite the individual to further engage in the interactive process and keep the door open to other options. In fact, any change in accommodations should be in writing.

Bottom line:

A little communication and documentation can go a long way and prevent costly litigation. Don’t rely on stereotypes or your personal knowledge and beliefs when an employee requests accommodations or gives notice of medical or psychological conditions. Meet with the employee, discuss his/her restrictions and discuss possible accommodations, if necessary.

As always, if you have questions or concerns regarding your obligations as an employer, contact an attorney in our Employment Practice Group: 818-990-2120.

Sue M. Bendavid and Tal Burnovski Yeyni are  Employer Defense Attorneys at our Firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Apr132015

Transgender Rights in the Workplace: A Guide for Employers to Protect Against Harassment & Discrimination

Business LitigationEmployer Attorney

by Hannah Sweiss

818.907.3260

 

Employer Discrimination Defense AttorneyLast week, President Obama signed an executive order banning discrimination against gay or transgender federal employees and contractors. On the same day, the first gender-neutral bathroom became available in the White House. The topic of transgender identity may be news to many. However, beyond the spotlight, transgender identity and the struggles surrounding transgender persons are real, particularly in the workplace. 

On March 16, 2015, the United States Commission on Civil Rights held its first ever hearing on workplace discrimination against those in the LGBT community.

According to NPR, the EEOC has helped more than 1,200 lesbian, gay, bisexual and transgender (LGBT) persons bring employment discrimination claims under Title VII since 2013. Some employer defendants have tried to claim Title VII does not protect transgender persons, but both state and federal courts disagreed.

As transgender rights awareness continues to gain momentum, employers need to be prepared to deal with new issues related to gender identity, gender stereotyping, and gender transitioning.

Federal Protections for Transgender Individuals

In 2012, the EEOC issued a landmark decision in Macy v. Holder, which held that discrimination based on transgender status constituted unlawful sex discrimination under Title VII. In December 2014, the Department of Justice issued a memo recognizing that transgender people are protected under Title VII.

In a landmark ruling issued on April 1, 2015, the Equal Employment Opportunity Commission (EEOC) found that the Department of the Army discriminated against a transgender employee who transitioned from male to female, by barring her from using the same restroom as other female employees, and by her supervisors’ continued intentional use of male names and pronouns in referring to the employee after her transition. The EEOC also determined that some of the most common forms of harassment faced by transgender employees constitute unlawful discrimination under Title VII.

The EEOC also recently adopted a strategic enforcement plan for Fiscal Years 2013-16, which specifically addresses "Emerging and Developing Issues," such as protections for LGBT individuals under Title VII of the 1964 Civil Rights Act. One EEOC initiative under the plan includes forming an LGBT work group to advise EEOC litigators, coordinate internal policies and comment on pending legislation. Another initiative has EEOC litigators filing amicus curiae briefs in lawsuits around the country – briefs filed by someone not a party to the litigation, but who have an interest (usually a social concern) in the outcome. 

Gender Discrimination Law

California Protections for Transgender Individuals

The California Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment or to discriminate in compensation or in terms, conditions, or privileges of employment because of the person’s gender identity. California Government Code sections 12940(a) and 12926(p).

Last year, the California Department of Fair Employment and Housing (“DFEH”), brought a lawsuit against a California employer alleging it was sex, gender, gender identity and gender expression discrimination to require a transgender employee to use the female locker room and restroom facilities until the employee’s gender transition to male was “complete” after sex reassignment surgery.

The FEHA broadly protects not only gender identity, but also gender expression (regardless of whether an employee self-identifies as a transgender individual). The expanding gender-identity protections safeguard employees who wish to dress like, act like and use the restroom of the gender they identify with, even if they never undergo surgery to alter their appearance. Employees’ gender identity and gender expression (including presenting in a way that does not comport with traditional gender roles) should not be a basis to treat employees differently.

Employer Takeaway

Failing to properly deal with issues of gender identity and gender expression may lead to employee claims. To help ensure a workplace free from discrimination and harassment for all employees:  

  1. Make tolerance part of the workplace culture by having strong anti-discrimination provisions in personnel policies and awareness of gender identity in proactive diversity training.

  2. Ensure employees know harassment and discrimination will not be tolerated based on sex, gender, sexual orientation, gender identity and/or gender expression.

  3. Employees should be addressed by their names or preferred title by all persons in the workplace.

  4. Implement reasonable workplace appearance, grooming, and dress standards that allow employees to appear or dress consistently with their gender identity.

  5. Consider assigning a gender-neutral restroom or locker room to accommodate ALL employees, whether male, female or transitioning.

  6. Ensure the privacy of gender-transitioning employees.

  7. If an employee requests help as he or she undergoes a gender transition, engage in a dialogue and ask the employee to share any concerns. Then, figure what accommodations are best and/or possible. A change in wardrobe could occur overnight, but a transition involving hormones and surgery might take several years to complete. 

Although employers and HR staff may be aware employees are protected against discrimination based on gender, gender identity and gender expression under California and Federal law, transgender discrimination or harassment claims may arise from others employed in the workplace. 

To help prevent such claims, employers should educate their workforce not only through policies and procedures, but also through training. If this means having employees participate in diversity training, then employers should consider making that investment.

 

Hannah Sweiss is an Employer Defense Attorney at our firm. Contact her via email: hsweiss@lewitthackman.com or by phone: 818.907.3260.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Jul152013

Wacky Employee Claims: Reasonable Accommodations for Unreasonable Requests?

Lawyer for EmployerEmployment Defense

 

by Nicole Kamm
818.907.3235

 

 

As an employment defense attorney, I often think I’ve heard it all: every conceivable employee complaint, late-to-work excuse, and “reasonable” accommodation request. Still, from time to time, I come across an employee claim that surprises even me.

Here are some recent ones:

Spa Sued Over Brazilian Wax Training: A woman hired at a spa as a “wax specialist” alleged her recent termination was discriminatory. As part of her training, her employer required her to receive a Brazilian wax – in front of her female colleagues. The employee refused and complained, and claims she was fired in retaliation. 

Hair Color Discrimination: Earlier this year, the NYPD issued an anti-bias message alert warning sergeants and lieutenants about harassment or discrimination against red-haired officers. This alert went mostly unsupported by those who did not feel redheads were a particularly disadvantaged group. However, employers should note, to the extent hair color is associated with race, ethnicity or national origin, it could give rise to a claim for employment discrimination.  

Fired for Irresistable Attraction?: A female employee sued for wrongful termination after her employer fired her based on his concerns that if she continued to work for him, he would have sex with her and it would ruin his marriage. The lower court ruled this did not violate the law. The employee was not fired because she was a woman, but because of her “irresistible attraction.”  The Iowa Supreme Court recently confirmed the lower court decision.  

Vegan’s Religious Accommodation Case to Proceed: A former hospital employee alleged she was fired for refusing to take a flu shot, which is derived from eggs, claiming such discharge violated her religious beliefs because she is a vegan. The court refused to dismiss the case, finding “it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.”

Disabled by Insomnia: A court recently denied an employee’s claim that her insomnia, which prevented her from sleeping more than four hours per night, was an ADA-protected condition. While insomnia may be a disability under the ADA if it substantially limits a major life activity (which includes sleeping), in this case the court found the employee was terminated because she failed to properly keep time sheets and was unable to “communicate accurately and truthfully.” 

Can Height Be a Disability?: An Arizona Department of Agriculture worker recently filed a claim for disability discrimination claiming she was forced into a field work position in which she would not be able to drive vehicles because she was too short (4’10”). The Court held, in some contexts, her short stature could “substantially limit one or more major life activities” (i.e., rise to the level of a disability). 

Time Off to Head-Bang: Though this one comes from overseas (Sweden), it is a good one. A 42-year old dishwasher, who claimed he was addicted to heavy metal, requested his employer reasonably accommodate time off to attend concerts and listen to music while working. 

 

According to EEOC: Disability claims have risen over 66% since 2000; while religious discrimination claims, though still relatively few in number, have nearly doubled.

The bottom line is this: Employers should be prepared for anything. Handling employee complaints and accommodation requests is certainly not an easy job. But staying on top of the ever-changing employment laws and consulting employment counsel when needed will go far to minimize the risk of claims and litigation. 

 

Nicole Kamm is an Employer Defense Attorney at our firm. Contact her via email: nkamm@lewitthackman.com for more information.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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