Vol. 32, No. 3, March 2003
In This Issue
Beware of Limiting Lawful Off-Work Activities
Sample Policy: Off-Duty Activities
State’s Broad Definition of “Disability” Upheld
Lawsuit Challenging Forced-Contracts Legislation Filed
Basic Safety Instructions for Hazardous Materials
Cal/OSHA Construction Pocket Guide Available in Spanish
Minimum Wage Increase Rejected Again
Newcastle Disease Worker Education
Sample Policy: Cellular Phones & Pagers
Sample Fact Sheet: Cellular-Phone Safety
EEOC to Abandon Opposition to Mandatory Arbitration
California's Disability Definition Upheld - New Procedures Required
Sample Policy - Physical Examinations - Reasonable Accommodation
Ag
Labor Law and Employment Summit Set
Safety Sheet: Battery Safety
Beware of Limiting Lawful Off-Work Activities
Starting in 2000, the Labor Commissioner has been authorized to pursue on behalf of employees claims for loss of wages due to their demotion, suspension, or discharge from employment for lawful conduct occurring during non-working hours away from the employer's premises. (Labor Code section 96, subdivision (k).)
Effective in 2002, an amendment to Labor Code section 98.6 provides that an employee who is discharged or otherwise discriminated against for such conduct is entitled to reinstatement, as well as lost wages and benefits.
That amendment conferred those protections beyond just current employees: It provided that applicants refused employment due to lawful off-duty conduct are entitled to employment and reimbursement for lost wages and work benefits.
Section 98.6 does allow certain employment contracts or collective bargaining agreements that protect an employer from conduct that is in “direct conflict” with its “essential enterprise-related interests” and that would actually create a “material and substantial disruption” of its operations. These provisions were added to address employers' concerns that the statute would call into question conflict-of-interest policies.
These provisions do not answer every situation of concern to employers, however. The law protects only employers that incorporate conflict-of-interest policies in employment agreements. Further, the exception encompasses only conflict-of-interest agreements executed by applicants and not those executed by existing employees.
Some off-duty employee conduct, while lawful, is nonetheless extremely harmful to legitimate employer business interests.
In agriculture, for example, many poultry ranchers forbid their employees from raising their own birds. A poultry rancher does this to help protect his or her flock from infection by diseases, such as avian influenza, that his or her employees might otherwise unwittingly carry from their home-raised birds to the rancher’s premises. At least without entering into a written agreement with newly-hired job applicants, the new law does not allow a poultry rancher to maintain or enforce this important prohibition since it is lawful for an employee to raise birds during nonworking times away from the employer’s premises. The efforts of other livestock ranchers to protect their animals from contamination in this way is likewise compromised.
Further, in every type of business, an employer may be legitimately concerned about avoiding conflicts of interest that would result if its employees were, while remaining in its employ, either to work for its competitors or to set up their own business in direct competition with their employer.
The law does contain language purporting to enable employers to protect their interests. But that language is far too narrow and restrictive to be of much, if any, use to the state’s employers.
First, that language enables employers to protect their interests only as to job applicants.
Second, it requires employers wishing to avail themselves of the limited protection offered by that language to enter into written contracts with job applicants; that is something many employers prefer not to do.
Third, the provision sets such unreasonably high standards of proof that employers could never be confident they had met them.
In light of this new law, employers should carefully review how they will enforce policies prohibiting off-duty conflicts of interest, fraternization, solicitation, and moonlighting to ensure those policies are not in conflict with the new law.
Here is a sample policy to consider adopting:
Sample Policy: Off-Duty Activities
Generally, the company does not prohibit employees from engaging in lawful off-duty activities. However, activities that are in “direct conflict” with the company's essential enterprise-related interests and that would actually create a material and substantial disruption of its operations are of concern to the company. At the time of hire, new employees may be asked to sign an agreement restricting their activities that are deemed to create a material and substantial disruption of the company's operations. Current employees must inform the company of activities they are engaged in as outlined below so that the company can monitor the impact of the activity while on duty.
The following are off-the-job activities of concern to the company:
1. Employment with another company. Employees who intend to "moonlight" (work at more than one job) should consult their supervisor before taking another position. If the supervisor feels the second job would unduly interfere with the employee's job performance, attendance, or safety, the employee will be asked to choose between the two positions.
2. Conducting an off-the-job business. The Company does not permit employees to conduct a business competitive to its own. The loyalties of an employee who is conducting such a business would be divided between the interest of the Company and the employee's business, resulting in an unhealthy relationship between the Company and the employee. Employees establishing a non-competitive business are cautioned not to allow their outside activities to adversely affect their job performance, attendance or safety.
3. Employee fraternization. The Company does not encourage co-employee dating or entering into consensual social relationships with other employees, and it cautions employees not to let such fraternization affect their job performance. The Company allows fraternization as long as each involved employee voluntarily consents to the relationship and the relationship neither impairs the judgment or performance of duties by any involved employee nor conflicts with the Company’s interests. For more information, consult the company's policy "Workplace Fraternization Policy."
4. Competitor fraternization. While the Company does not prohibit employee fraternization with employees of its competitors, these relationships could compromise the Company's proprietary information such as customer lists, product ingredients or other sensitive information. Accordingly, employees must disclose any personal relationships of this nature.
5. Raising of livestock. The health of the Company's livestock can be jeopardized by an employees who carry diseases from their home-raised livestock onto the Company’s premises. To enable the Company to monitor this threat and to minimize the risk of such contamination, employees must inform the Company of their off-the-job livestock-related activity.
Direct any questions about this policy to the office.
Sea Mist Farms LLC and 37 of its employees last month settled a lawsuit involving transportation issues. Under terms announced in Salinas, the company paid more than $181,000 for time spent by workers during transport to and from work in company vehicles.
The employees claimed that for four years they had to report to a central location, from which they were driven in company buses to company fields. The time spent traveling to the fields was not compensated as time worked. They also claimed they were not paid for various pre-shift and post-shift tasks, such as donning company-issued equipment, loading tools and exercising.
In settling the suit, the company did not admit to any wrongdoing, according to Art Barrientos, vice president of harvest operations. According to Barrientos, the company believed that settling the suit made more sense for everyone involved than dragging out the dispute in court.
The company maintained that transportation to the fields was voluntary. Time spent by employees who voluntarily ride in company vehicles to and from work is not considered hours worked, according to the California Supreme Court’s 2000 decision in Morillion v. Royal Packing. In that case, employees were not allowed to ride in their own vehicles to the work site, and thus the time spent riding in company vehicles was compensable.
State’s Broad Definition of “Disability” Upheld
(Source: Patrick Moody, Barsamian, Saqui & Moody*)
California’s Supreme Court issued Feb. 20 an important decision on the scope of the term “disability” under California’s Fair Employment and Housing Act (FEHA). The unanimous decision is bad news for employers, as it held the term “disability” has a far broader meaning under California law than under the federal Americans With Disabilities Act (ADA).
The employee in this case, Colmenares v. Braemar Country Club, Inc., contended his employer had fired him because his chronic back condition prevented him from heavy lifting. The key issue for the Court was how limiting the employee’s back condition had to be for it to be a “disability.”
In 2001, the Legislature passed the Poppink Act, which stated that a “disability” under the FEHA was any condition that “limited” a major life activity. That legislation specifically rejected the ADA definition, which requires that a condition “substantially limit” a major life activity for it to be a disability.
The trial court ruled for the employer, noting the employee had been discharged before the Poppink Act’s enactment, and that before then, “disability” under the FEHA and the ADA had the same meaning. The appellate court agreed.
The Supreme Court, however, held that the Poppink Act merely clarified the existing definition of “disability” under the FEHA–one that does not require the condition to be “substantially” limiting.
California enacted its first protections for employees with “physical handicaps” in 1973, based upon a virtually identical federal scheme, and the state used the federal definitions. When Congress enacted the ADA in 1990, California’s Legislature revised the FEHA to use the same terminology as the ADA. In drafting the definition of “disability” for the FEHA, however, California did not use the term “substantially limits.” Despite that, many California courts over the years had adhered to the federal “substantially limits” definition.
With the decision in Colmenares, however, the Supreme Court conclusively established that for a condition to be a disability under the FEHA, it need merely “limit” a person’s ability to participate in a major life activity. In that regard, the condition need merely make it more difficult for the person to participate in the major life activity, not prevent him or her from doing so entirely.
What This Means For Employers: This decision conclusively establishes the term “disability” under California law is significantly broader than under the ADA and in fact is virtually limitless. Thus, all California employers covered by this FEHA provision (i.e., those with five or more employees in at least 20 consecutive weeks of the current or prior year) must re-double their efforts to evaluate thoroughly each situation where it appears an employee may have a condition that limits his or her ability to participate in a major life activity.
The most important step for employers to keep in mind is the absolute requirement to engage the employee in an “interactive process” to discuss the condition, how it impacts his or her ability to perform the essential functions of the job, and what, if any, “reasonable” accommodations might be available that would allow the employee to perform the essential functions of the job.
In many cases under the ADA, the key issue, and the issue that most employers have won over the years, is usually whether the employee even has a covered disability. In cases under the FEHA, however, that issue is almost a foregone conclusion, and the key issue is whether the employer properly engaged in the interactive process and then attempted to explore and try reasonable accommodations.
*(The goal of this article is to provide employers with current information on labor and employment law. Its contents should be neither interpreted nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360 or his or her own attorney for individual responses to questions or concerns regarding any given situation.)
Lawsuit Challenging Forced-Contracts Legislation Filed
A lawsuit filed Feb. 24 seeks to enjoin the enforcement of a set of new state laws that require mediation and can result in the imposition of labor contracts in cases where agricultural employers and unions reach an impasse in contract negotiations.
The suit was filed by Pacific Legal Foundation in Sacramento County Superior Court. California Farm Bureau Federation (CFBF), Western Growers Association (WGA), several other agricultural groups and one employer are plaintiffs in the suit against the California Agricultural Labor Relations Board, which is charged with administering the laws.
The lawsuit alleges that legislation Gov. Davis signed into law Sept. 30–SB 1156 and AB 2596–and that amended the Agricultural Labor Relations Act eliminates the constitutional freedom of private-party contracting within the agricultural industry.
According to CFBF President Bill Pauli, "the new state law has several real and significant constitutional flaws we cannot ignore. Stripping private-sector employers and employees of their rights to freely negotiate labor contracts is unfair, unprecedented and contrary to more than 50 years of collective bargaining history.
"It is significant that Pacific Legal Foundation," continued Pauli, "a non-profit public-interest law firm, has taken this case. After a thorough review of it, PLF determined the new law's scheme of government-imposed labor contracts violates both the state and federal constitutions. We are confident the court system will ultimately restore the freedom of farmers and farm workers to enter into voluntary labor pacts with each other."
"We believe the law is patently illegal," said WGA President Tom Nassif. "This law violates the constitutional rights of farmers and farm workers to bargain in good faith and unfairly singles out the agriculture industry for a labor relations process found nowhere else in the United States."
The suit was served on the ALRB defendants on March 10, and PLF has granted the state a customary 30-day extension to respond to the complaint. Thus, the state must file its answer or other responsive pleading by May 9.
The United Farm Workers union, which sponsored the legislation, and the United Food and Commercial Workers Local 1096 will ask the Sacramento court on April 10 to be added as parties. Given the clear interests of those unions in the outcome of the case, the court would undoubtedly grant their motions to intervene, and so PLF will not waste its resources in what would be a futile effort to oppose those motions.
Employers should be aware of two more bills enacted last year, both of which went into effect on Jan. 1, 2003.
AB 1401 extends the Cal-COBRA coverage period from 18 to 36 months for any Cal-COBRA coverage beginning on or after Jan. 1, 2003.
AB 2195 extends to victims of sexual assault the protections contained in Labor Code section 230.1 for victims of domestic violence.
Both of these laws may require you to revise your employee handbooks and personnel manuals.
(Source: Jennifer Brown Shaw, Esq. Attorney, Jackson Lewis LLP, (916) 341-0404)
Basic Safety Instructions for Hazardous Materials
California Vehicle Code section 12804.2. allows class C drivers license to be exempt from the hazardous materials endorsement requirements when all of the following conditions are met:
(1) The person is employed in an agricultural operation and is driving a vehicle controlled by a farmer and transporting agricultural products or farm machinery or supplies to or from a farm.
(2) The driver has completed an agricultural hazardous materials transportation program offered or approved by the Department of the California Highway Patrol.
(3) The driver has, within the vehicle, informational material approved by the Department of the California Highway Patrol, in both English and Spanish, outlining basic safety procedures to be followed in the event of an accident.
(4) The driver is operating a vehicle which is an implement of husbandry or a motor vehicle requiring a class C driver's license and the distance which the vehicle is being operated between the final point of distribution and the ultimate point of application or from part of a farm to another part thereof, or from one farm to another, is not more than 50 miles.
(5) In lieu of a report of a medical examination an applicant for a certificate pursuant to paragraph (3) shall, upon application and every two years thereafter, submit medical information on a form approved by the department.
The informational material noted in item 3 is CHP Form 344. The form is available from the CHP publications department by calling (916) 375-2101, or it can be downloaded from the FELS Web site in the Subscriber Resources area.
Cal/OSHA Construction Pocket Guide Available in Spanish
Cal/OSHA has released a Spanish version of its Construction Pocket Guide. The guide provides a reference to the Cal/OSHA regulations covering construction.
While the publication was written for construction employers, much of its material can apply to agricultural operations.
To order a copy of the publication, contact your local Cal/OSHA Consultation office, or fax a request to (916) 574-2532.
An older version of the English Guide and the new Spanish Guide (along with other Cal/OSHA publications) can be downloaded and/or ordered online. The Internet address is http://www.dir.ca.gov/dosh/PubOrder.asp.
Minimum Wage Increase Rejected Again
On a 3-2 vote, the California Industrial Welfare Commission rejected for the second time this year a labor-backed proposal to increase the state minimum wage by $1.25, over the next two years. The proposal would have raised the earnings floor to $8 an hour by July 2004.
However, labor leaders will seek an increase in the Legislature. The measure, SB 57 (John Burton, D-San Francisco), would automatically tie increases to the federal consumer price index.
Newcastle Disease Worker Education
California Farm Bureau Federation (CFBF) is asking for employer cooperation in getting the word out to as many persons as possible to help prevent further spread of the devastating foreign animal disease, exotic Newcastle disease. The disease, now in Southern California, affects both commercial egg flocks and backyard bird populations–particularly "game" fowl.
This disease is nearly always fatal and can affect any feathered animal.
An educational flyer developed by the California Department of Food and Agriculture is available on the CFBF Web site at <http://www.cfbf.com/issues/new castle/default.aspx>.
Employers can download and print the material in both English and Spanish for distribution to their farm employees by attaching it to, or in the same envelope as, their paycheck. Three copies of the flyer appear on each page.
For those of you who are in a county with a commercial poultry industry (layers, broilers, turkeys, or breeding facilities), this outreach effort is particularly crucial to prevent further harm to California agriculture.
Tammy McCutchen, Administrator of the Wage and Hour Division (WHD) of the U.S. Department of Labor, recently addressed attendees at the National Council of Agricultural Employers in Washington, D.C.
In her presentation, McCutchen announced a national enforcement initiative for 2003, targeting for inspection only certain crops and key provisions of law (see below for a detailed list).
This does not mean that inspectors will ignore noncompliance with other statutory provisions if they encounter them during inspections; it means only that inspectors will focus their resources as identified below. The WHD will conduct inspections in response to complaints of potential noncompliance with applicable statutes.
The Administrator indicated that H-2A program users would not be targeted for enforcement purposes just because they participate in the program. The H-2A program is off the target list, with one limited exception in an upper Great Plains state where there have been some indications of alleged noncompliance.
Finally, McCutchen outlined her other plans for 2003: to revise the Field Operations Handbook used by inspectors to guide their inspections; to revise the housing standards checklist; and to provide training for inspectors.
She also announced stakeholder meetings in late March to discuss the recommendations of the National Institute for Occupational Safety and Health.
The DOL's Web site address is http://www.dol.gov/esa/whd/
Target Enforcement Initiative:
Southwest AR Tomatoes - Housing, Transportation AR Peaches - Housing, Transportation LA Cotton, Sugar Strawberries - Housing NM All Crops - Housing, Transportation TX All Crops - Housing, Transportation UT Sheepherders - H2-A
West AZ Melons - Housing AZ All Crops - Transportation CA All Crops - Housing, Transportation CA Onions - Housing, Transportation CA Grapes - Housing CA Strawberries - Housing, Transportation WA Asparagus - Wages, Housing, Transportation WA Apples - Wages, Housing, Transportation
Lee Gross, educator at St. Cloud with the University of Minnesota Extension Service, has written a compact Spanish dictionary for dairymen.
The pocket-sized, 31-page booklet, spiral bound with durable laminated cover, is designed to help dairy farm personnel quickly and easily locate Spanish/English phrases and translations.
The dictionary, which costs $12.50 plus handling and applicable sales tax, can be ordered online at http://www.extension.umn.edu/units/dc/item.html?item=07753.
Digital 2000, Inc., (formerly Don Brown Productions) has developed new video technology allowing for fully interactive training program over the Internet or on CDs.
According to Digital 2000, Inc., the programs can reduce training time and costs and video purchases, while increasing retention of the knowledge presented in the interactive training programs.
The programs also feature complete documentation of the training to ensure OSHA compliance.
Digital 2000 can also convert your company's own video training programs onto CD's.
For more information, go online at www.kalsonline.com, email products@digital-2000.com or call (800) 334-1523.
Mexican nationals living in the United States increasingly are taking advantage of a new kind of ID card, which is available to them even if they are here illegally.
Law enforcement agencies are starting to accept the Mexican identification cards as legitimate documents.
Last year the Mexican consulate issued thousands of the identification cards, called matriculas consular–more than double the number issued in 2000. Consulate officials say they have seen a surge in the number of cards issued since Sept. 11, 2001, amid an extra push for security and proper documentation.
A Mexican consul spokesman said the documents are crucial because they inform law enforcement officers that the cards’ holders are Mexican nationals–that the person is a Mexican national and entitled to the protections of the consulate of Mexico.
Law enforcement offices agree. Fresno Sheriff Richard Pierce said, "For us in law enforcement, it is obvious we need to identify people who we come into contact with. Often, they're victims." Currently, 25 sheriff's departments in California recognize the card.
Applicants say the cards also help in everyday life, from proving age when buying cigarettes to business situations. For example, Wells Fargo banks in 23 states accept the cards as identification.
Mexican nationals living in the consular circumscription and meeting the following requirements are entitled to have a matrícula consular:
* Presentation of an original birth certificate
* Presentation of another official Mexican I.D.
* Proof of address
* To provide personal information
* Picture, to be taken
The age old refrain "how did we exist without . . ." surely applies to cellular phones. They have become a vital part of our lives. However, they do have a down side, that being a safety risk.
Whenever an employee's attention is divided between two activities, it opens the door to a safety hazard, especially when operating equipment. Add to this the risk of an injury to a third party in an on-the-road vehicle accident due to the driver's use of a cellular phone, and the result can be devastating for an employer.
Under Cal/OSHA’s general-duty clause, employers must provide a safe and healthful place of employment. By condoning the use of cellular phones while employees are performing tasks that require their full attention, an employer may be in breach of the general-duty clause.
Employers should establish policies and procedures to limit their exposure to the risk of cellular-phone use on the job. Here are some procedures employers should consider:
1. From a very conservative position, prohibit the use of cellular phones while employees are on duty.
2. If cellular-phone use is authorized, limit it specific employees, and only after they have received safety training. Documentation of the training and the employee's acknowledgment of the company's policies should be kept on file.
3. Employers who issue cellular phones may consider placing a warning on the phones about not using them while operating equipment.
4. Employees who are reimbursed for business-related phone charges should consider having employees certify they did not use the phone in any way that violates company policies. The certification can be attached to the reimbursement form.
5. Cellular-phone use policies must be firmly and uniformly enforced.
Here is a sample policy that addresses on-the-job cellular-phone use.
Sample Policy: Cellular Phones & Pagers
The use of cellular phones while on duty posses a safety hazard, especially for employees who operate shop or moving equipment. Therefore, employees may not, without the company's written authorization, have or use cellular (wireless telephones) while on duty. Before being authorized to use a cellular phone while on-duty, an employee must be trained in the safe use of cellular phones and sign an acknowledgment of such training.
Employees may have pagers in production areas but must wait until an authorized rest or meal period to return pages.
An employee authorized to have or use a cellular phone while on duty must follow these rules:
1. Cellular-phone use is prohibited while operating a vehicle or operating equipment, e.g., shop equipment, forklifts or tractors.
2. If a vehicle operator must use a cellular phone while operating a vehicle, the operator must either stop the vehicle and use the cellular phone in a safe off-the-road location or use the "hands-free" feature.
3. Violation of this policy will subject an employee to disciplinary action, including discharge.
Here is a cellular safety fact sheet. Note that item 5 has four options. You should select the option which best complies your company policy.
Sample Fact Sheet: Cellular-Phone Safety
The use of cellular phones while on duty can create serious hazards. Many people use them while they are performing tasks that demand the user's complete attention. Following three general rules will help in reducing these hazards and make it easier to summon help in the event of an emergency:
1. Avoid using a phone while driving or while operating dangerous equipment
2. Program frequently-used numbers into the phone
3. Make sure 911 is programmed into your phone
If you absolutely must use a mobile phone while driving a vehicle or using dangerous equipment, adhering to some simple rules will greatly reduce the likelihood of accidents. Make sure you:
1. Install and use the hands-free or speaker phone option to allow you to keep your hands on the steering wheel and your eyes on the road while receiving phone calls.
2. Make sure your phone is mounted where you can easily reach it while driving.
3. Don't try to figure out how to use features of the phone until it is safe (do that ahead of time). Familiarize yourself with all the operations of your cellular phone and learn to use it without looking.
4. Don't use the phone at all while driving in bad weather conditions (e.g. rain, fog).
5A. (Option #1)Dial sensibly. Wait for a stop light or pull off the road to dial. Or, ask your passenger to dial for you. Don't use your cellular phone in distracting traffic situations.
5B. (Option #2)Dial phone numbers only while at stop lights or stop signs.
5C. (Option #3)Keep your attention on the road by programming frequently called numbers into the phone's memory.
5D. (Option #4)Pull off the road to make a call. Be careful about where you stop to make calls. Parked callers may become crime victims.
6. Don't take notes or look up phone numbers. Keep phone calls brief.
7. Practice using the phone prior to using it while driving
8. Disconnect your cellular phone when using jumper cables - the power surge could burn out your phone.
9. When calling 911 to report an emergency, be prepared to provide the closest major cross streets or off-ramps, and know your cellular-phone number. Use your voice mail to take calls or leave yourself messages.
Direct any questions or concerns about cellular-phone safety to the office.
EEOC to Abandon Opposition to Mandatory Arbitration
The Office of Legal Counsel of the U.S. Equal Employment Opportunity Commission (EEOC) has announced it will recommend a change in its policy on mandatory arbitration. It will recommend to the EEOC that existing guidance that opposed mandatory arbitration claims be rescinded and new guidance be issued.
The change is largely due to the Sept. 2002 decision by the Ninth U.S. Circuit Court of Appeals in EEOC v. Luce Forward, by which that court joined every other federal appellate court in holding that mandatory arbitration of statutory discrimination claims is not at odds with federal law, and the Supreme Court’s continued endorsement of arbitration in such cases as Circuit City Stores v. Adams.
The following were enumerated by the Office of Legal Counsel as among the items it intended to recommend to the EEOC as minimum legal standards for pre-dispute arbitration programs:
* arbitrators must follow substantive statutory discrimination law
* all remedies including punitive damages as available under federal discrimination law and injunctive relief
* traditional burdens of proof
* regular statutes of limitations for filing claims
* impartial and fair method of selecting arbitrators
* arbitration agreements to be in writing and contain traditional statutes of limitation
* nothing in the arbitration agreement can interfere with the EEOC's right to investigate and pursue any claim even those going to arbitration
The Office of Legal Counsel indicated it was still looking at the issue of how arbitration costs could be allocated and was considering following the approach of the Supreme Court in its Greentree Financial decision, which mandates an individualized assessment of a claimant's ability to absorb any arbitration costs above those that would be incurred in a court proceeding.
California's Disability Definition Upheld - New Procedures Required
As noted in another article in this issue of the FELS Newsletter, the California Supreme Court upheld California's Poppink Act of 2001, which broadened the interpretation of what it means to be “disabled” and entitled to protection under the Fair Employment and Housing Act. See the article State’s Broad Definition of “Disability.”
In addition to broadening the definition of disability, the Poppink Act also limited employers in these ways:
* Privacy: Employee privacy is also broadened, whether disabled or not. Before an offer of employment is extended, the only lawful question regarding medical or physical condition is: "Can you perform the essential functions of this job with or without some reasonable accommodation?"
* Post-hire/pre-employment physical exams: After the candidate is hired, any medical inquiry or examination must be "job-related" and "consistent with business necessity." Therefore, routine post-offer medical examinations that would be legal under the ADA may run afoul of the Poppink Act. At the end of this article are sample employment policies that address this issue.
* Duty to Engage in an Interactive Process: California employers covered by the FEHA’s disability protections must, where appropriate, engage both job applicants and employees in an "interactive process" to determine the need for effective accommodations of disabilities. Essentially, the law requires a "give-and-take" between the employer and applicant or employee to determine what reasonable accommodations are necessary to allow the individual to perform the essential functions of the position.
The burden to initiate the interactive process usually begins after the employee or applicant with a known disability or known medical condition requests accommodation. An employee is not required to initiate the "interactive process.". An employer must explore with the employee an accommodation through an interactive process which seeks to ascertain a "reasonable accommodation." An employer is not required to grant the specific accommodation requested by the individual or to create a position to accommodate the disability. Nor are employers required to hire an individual whose disability clearly renders the applicant unable to perform the essential functions of the position.
It is particularly important for employers to engage in this interactive process with employees who take a medical leave of absence. Employers should ensure their policies do not provide that employees will be terminated at the end of any medical leave, particularly those taken under the California Family Rights Act or the Family Medical Leave Act. A failure to engage in the interactive process under such circumstances would probably violate the FEHA, and possibly the ADA. Thus, employers should be open to considering various reasonable accommodations depending on the circumstances of a particular situation. They also should consult with legal counsel regarding the accommodation obligation.
It is important for employers with 5 or more employees to not automatically discipline employees for poor attendance, or, limiting an employee's medical leaves of absence. If the employee suggests that his attendance problem is due to a medical issue then you must actively explore a "reasonable accommodation."
Sample Policy - Physical Examinations - Reasonable Accommodation
The Company may require a physical examination for specific job positions, as may be job-related and based on business necessity, at the time of hire or when it is uncertain about an employee's physical ability to perform his or her job. A physical examination is conducted by a doctor selected by the Company at the Company's expense. Records of such physical examinations are confidential.
To comply with applicable laws ensuring equal employment opportunities, the Company makes reasonable accommodation for the known physical or mental limitation of an otherwise-qualified job applicant or employee with a disability. An accommodation that would result in an undue hardship on the Company is not reasonable.
An applicant or employee requiring an accommodation to enable him or her do all essential job functions should ask a Company representative with day-to-day personnel responsibilities for a specific desired accommodation. The Company then conducts an investigation to identify any barrier that interferes with the ability of the person to do the job. The Company then identifies possible accommodations, if any, that would enable the person to do the job. The Company will make an accommodation as long as it is reasonable and would not impose an undue hardship on the Company.
Ag Labor Law and Employment Summit Set
Rising costs of workers’ compensation insurance will be one of the “survival” issues discussed at the upcoming Agricultural Labor and Employment Summit set for Thursday, May 8, at Harris Ranch near Coalinga, California.
The annual event has become an important networking seminar for many central California agricultural and agribusiness leaders who gather to share information and experiences in the areas of agricultural labor and employment law.
Workers’ compensation will be one of three key topics addressed at this year’s summit, hosted by Fresno State’s Center for Agricultural Business (CAB).
Leading a portion of the discussions will be Guadelupe Sandoval, director of Risk Management Services for USI Northern California. Sandoval will present methods employers can use to reduce workers’ compensation exposure. Among specific topics he will discuss are how to avoid paying fraudulent claims, and how to minimize exposure to repetitive motion injuries.
Michael C. Saqui, partner in the law firm of Barsamian, Saqui and Moody, will discuss “Labor and Employment Law Survival Strategies.” His presentation will include a hands-on, interactive legal and legislative update, as well as advice on confronting new employer challenges.
Ron Barsamian, also a partner in the Barsamian, Saqui and Moody firm, will address amendments to the California Labor Relations Act “Mandatory Mediation.”
L. George Daniels III, vice president of Farm Employers Labor Service, will focus on employee handbooks and their importance. He will address the question “Why publish a handbook?” as well as the importance of establishing and publishing employment policies.
The summit will be held from 8 a.m. to 12 noon in the Garden Ball Room of Harris Ranch, located at the intersection of Interstate 5 and Highway 198. Regular registration fee is $35 for registrations postmarked by May 2. Discounts are available.
For more information call 559-278-4405, or visit the CAB website at cati.csufresno.edu/cab.