Topic 8
The “Treacherous Triangle”:
Disability Discrimination and related OSHA/Workers Compensation & FMLA/CFRA issues [Chs. 13, 16]
Americans with Disabilities Act [ADA]: Cannot discriminate in employment against an otherwise qualified individual with a disability who can perform the essential functions of the job with or without a reasonable accommodation [whew!]
*ADA is a rare example of a proactive civil rights legislation
*Applies to Unions (re: membership) as well as Employers
*Interfaces with Workers Compensation laws and FMLA/CFRA are evolving and very complex [e.g., in return-to-work situations where work-related injury may involve impairment of major life activity and/or serious medical condition]
Example scenario: Dillon v. City of Moorpark (CA, 1998)—Disability due to job-related injury may trigger ADA/FEHA liability (failure to reasonably accommodate); plaintiff not necessarily limited to Workers' Compensation "exclusive" remedies when seeking reinstatement or some other accommodation
Detailed LEGAL ANALYSIS:
1) Is the individual "disabled" (i.e., has a physical or mental impairment that "substantially limits" one or more "major life activities")?
*Includes record or history of impairment, or perception of impairment
*As of 1999, whether impairment "substantially" limits a major life activity had been determined with reference to mitigation measures (e.g. eyeglasses for nearsightedness, medication for hypertension, etc.; see Sutton & Hinton v. United Air Lines; Murphy v. UPS, inter alia [U.S. Supreme Court, 1999], under federal law
*But Jan. 2001 amendments to FEHA undo this under California State Law
--"Substantial limitation" not required for impairment to qualify as disability
--Mitigating measures not considered in determining whether major life activity is limited
--Clinical depression, bipolar mood disorder, hypertension now explicitly recognized as disabilities
*And, as of January 1, 2009, mitigation measures are no longer considered under federal law either—see legislative changes now in effect per the ADAAA [Americans with Disabilities Act Amendments Act] as summarized on main page
2) Is the individual "otherwise qualified" (i.e., can they perform the "essential functions" of the job,
with or without a "reasonable accommodation")?
a) What are the "essential" functions of the job (job analysis very important here)?
b) What is a "reasonable" accommodation? Consider ...
*Nature and cost of accommodation sought
*Resources of the employer or union
*Type of job
*Whether fundamental method of doing job would be altered
*Whether terms of collective bargaining agreement (e.g., seniority)violated
*Case law developments had limited definition of "disability" to account for effect of mitigating measures
- Sutton v. United Airlines (Supreme Ct. 1999); Murphy v. UPS [in class]
-However, legislative changes undo many of these effects and reduce differences between California and Federal disabilities law these changes, summarized here, effective January 1, 2009
-Collins (in class; threats/violence may imply not otherwise qualified rather than disabled)
*Reasonable accommodation requires "interactive process" with employee;
*Duty to accommodate does not require replacing a more qualified employee
2a) Current drug or alcohol users not protected, but beware of "regarded as" liability
2b) Reliable attendance may be an “essential function” of a particular job (Samper, 9th Cir. 2012; text @ 646)
3) "Judicial Estoppel": The "Catch-22" of plaintiffs relying on working as a major life activity in disability cases
*Kennedy v. Applause, Inc. (9th Cir. 1996)
*Cleveland v. Policy Mgmt. Systems (S. Ct. 1999) Judicial Estoppel and the ADA: Summary of U.S. Supreme Court (1999) opinion in Cleveland v. Policy Management Corp
*Toyota v. Williams (S. Ct. 2002); determining whether RMIs impair activities of "central importance to daily life" [Note: Case is now of limited viability after 1/1/09 legislative changes designed to overturn most aspects of the result]
*Other “major life activities”—See, e.g., Head v. Glacial Northwest (9th Cir. July 06, 2005) [sleeping, interacting with others, thinking].
*New employment law (?)--the AWNAA
4) "Direct Threat" defense
*Chevron v. Echazabel (9th Cir. 2000, S.Ct. 2002)
5) Special issues of concern re: asymptomatic HIV; reproduction and sex as "major life activities"
*Bragdon v. Abbott (S.Ct. 1998--in class)
B) FMLA/CFRA Considerations
1) Basics of Family and Medical Leave Act (FMLA) [see text]
-Revisions to FMLA [newer provisions effective January 16, 2009]
*Reinstatement and non-retaliation after applying for/taking leave
-FMLA may cost employers $21 billion
-FMLA Notification Requirements
*CA state law provides for up to 4 months’ pregnancy disability leave [see generally text at pp. 370-372; updated [2012] regulations at www.dfeh.ca.gov (Cal. Dept. of Fair Employment and Housing generally); http://www.dfeh.ca.gov/FairEmploymentAndHousingCounsel.htm; includes lactation, severe morning sickness, childbirth, post-partum depression, and other non-obvious pregnancy-related disability conditions
*California Family Rights Act (CFRA) benefits consecutive to pregnancy [cf. FMLA]
Under the California Family Rights Act [CFRA], serious health condition that makes employee "unable to perform the functions of the position" means inability to perform the essential job functions generally, rather than for specific employer.
C) OSHA and Workers Compensation Considerations
1) Basics of OSHA
*Recordkeeping/reporting requirements and non-retaliation against workers for reporting violations
*Specific Regulations re: particular hazards (e.g., ladders, guardrails)
*General Duty clause
-Absent specific standards, employer must maintain workplace reasonably free of recognized hazards likely to cause death or serious physical harm
-In multiple employer worksites, any employer who creates hazardous exposure is liable to any employee lawfully on the worksite and exposed to the hazard)
-California OSHA – Criminal and Civil Penalties for managers who fail to fulfill safety obligations
2) Contemporary workplace safety issues
*AIDS/HIV (discrimination/harassment crossover issues with ADA and perceived sexual affinity orientation)
*Smoking (Cal. Labor Code Section 96)
*Cumulative Trauma Disorders/Ergonomics (Federal standards proposed; Cal-OSHA Standards now in effect)
-Ergonomics Issues--California standards confusing, under revision
*Hazardous Chemicals/Fetal Protection (labeling requirements and gender discrimination issues)
*Drug, Alcohol, and Genetic (susceptibility) Testing (ADA considerations and FEHA prohibitions)
-Update regarding Genetic information [EEOC regulations November 2010]
*Workplace Violence (emerging cause of action for "negligent firing"?)
3) Basics of Workers' Compensation
*Employer liable for scheduled compensation for work-related injuries on a "no-fault" basis
*Employee limited to these "exclusive" remedies (i.e., cannot sue employer for negligence) if injury occurred "within course and scope of employment," i.e., if
a) activity directly benefited employer, and
b) activity urged by employer or reasonably believed to be compulsory
*Retrospective rating of employer premiums affords safety incentive
4) Paradox exists as to who wants to invoke coverage and when (e.g., employee if nobody else to blame, employer to avoid potentially greater liability for negligence):
*Kidwell v. WCAB (Cal. App. 1995)
*Alader v. Vaca Valley Hospital (Cal. App. 1996)
5) Erosion of exclusivity of "exclusive remedy" provisions:
*City of Moorpark v. Dillon (CA, 1998)
*Snyder v. Michael's Stores (CA, 1997; woman injured on job via exposure to hazardous substances limited to exclusive remedy, but child injured in utero can sue company for negligence)Text of Snyder v. Michael's Stores