One thing all employers understand and can agree with is that having employees be absent from the work results in lost profits, a loss in productivity, lost business opportunities and an overall breakdown in the otherwise normal functioning of the employer’s business. Further, the laws governing leaves of absence from work, accommodating persons with disabilities, workplace safety and injuries, and the collecting and maintaining of medical and other related information are extremely complex, confusing, difficult to follow and occasionally inconsistent.
In fact, one of the most difficult challenges employers face is trying to understand and comply with the constantly evolving landscape of federal, state and local laws and regulations covering these areas. In addition, claims and lawsuits involving these areas are becoming increasingly prevalent and more difficult to defend.
Moreover, persons with disabilities or other injuries and/or illnesses, persons with caregiving responsibilities, and members of the military and/or their families are typically extremely sympathetic plaintiffs in litigation. Accordingly, it is vitally important that employers take the time to understand the various leave and health-related laws that apply to them, work to achieve and remain in compliance with those laws, and implement preventive best practices to minimize the risk of legal exposure.
What Types of Leave and Health-Related Laws Does My Company Need to Be Concerned About?
Determining which federal, state and local laws and regulations apply to your Company depends on several factors including the nature of your business, the number and types of employees you have, the types of job duties your employees perform, and the types of physical, mental or medical conditions, illness and/or injuries of your employees or family members. In addition to perhaps the more well-known of such laws relating to family and medical leaves of absence, discrimination and harassment [Harassment, Discrimination and Retaliation] against persons with disabilities and workers compensation, employers also must grapple and comply with a variety of additional and often overlapping requirements.
On the federal level, among the various laws and regulations to which covered employers are subject include the:
- Family and Medical Leave Act of 1993 (FMLA) – covering family and medical leaves
- Americans with Disabilities Act of 1990 (ADA) – covering persons with physical and mental disabilities, disability accommodation, medical examinations and drug and alcohol abuse
- Health Insurance Portability and Accountability Act (HIPAA) – covering the use and disclosure of protected health information
- Genetic Information Nondiscrimination Act (GINA) – covering the acquisition and disclosure of genetic information
- Occupational Health and Safety Act (OSHA) – covering workplace health and safety issues
- Department of Transportation (DOT) Regulations – covering testing persons in safety-sensitive positions
- Title VII of the Civil Rights Act of 1964 – covering pregnancy, childbirth, and related medical condition
- Uniformed Services Employment and Reemployment Rights Act (USERRA) – covering civilian job rights and benefits for veterans and members
Employers also must contend and comply with similar – and, in the case of California and several other states – often more expansive state laws covering many of these very same issues. In fact, in many cases, the California laws have procedures, forms, and requirements which are different from those otherwise required under federal law and, in several instances, California provides for more of different leave benefits than exist under federal law. In California, for example, employers must comply with the:
- Fair Employment and Housing Act (FEHA) – covering physical and mental disabilities, pregnancy disabilities and other medical conditions, disability accommodation, medical examinations and drug and alcohol abuse
- California Family Rights Act (CFRA) – covering family and medical leaves
- California Occupational Health and Safety Act (Cal/OSHA) – covering workplace health and safety issues
- California’s Workers Compensation laws – covering illnesses and injuries arising in the course and scope of employment which are
- California’s “Kin Care” Leave (Labor Code, Section 233) – covering the use of sick leave to attend to illnesses of family members
- California’s Military Spouse Leave – covering time off for employees with spouses on leave from certain types of active military service
- California Confidentiality of Medical Information Act (CMIA) – covering the use, disclosure and protection of employee medical information
- Various other California leave laws relating to voting, child education and/or daycare, domestic violence and other court appearances and volunteer firefighters, reserve peace officers, civil air patrol and emergency rescue personnel
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How Do These Laws Impact the Employment Relationship?
As demonstrated, these laws impact a wide-range of issues involving the employment process and employment relationship, including:
- Examinations to determine whether applicants for employment will be able to satisfy the physical and mental demands of the jobs for which they are applying
- Other employment tests and evaluations to identify the candidates most likely to succeed in a given position
- Substance abuse testing
- Policies, procedures and documentation which reflect performance and productivity standards and expectations and demonstrate compliance with the various applicable laws and regulations
- Job descriptions
- Employee attendance and related issues
- Employee work related injuries and illnesses
- Employee non-work related injuries and illnesses
- Employees with physical or mental disabilities
- Employees who are caregivers or have caregiver responsibilities for family members
- Job accommodation and the “interactive process”, light duty work, return-to-work programs, fitness for duty evaluations
- Employees who are themselves members of the military or reserves
- Employees who have family members who are in the military or reserves
- Workplace “wellness programs”
- Workplace health and safety measures and programs
- Workplace security and violence
- Record maintenance and retention of medical and other private/protected information (e.g., reflected in or learned in connection with the results of medical examinations, substance abuse testing, employee “self-disclosure”, etc.)
- Training of management, supervisors and employees to understand how the above-referenced laws impact their respective rights, responsibilities and obligations in the various ways identified above
As a result of the foregoing, it is understandable why employers are often mystified and overwhelmed by laws covering workplace safety and the management of injuries and illnesses of their employees and family members. Likewise, it is understandable and perhaps inevitable that employers will not always be in full compliance with all of their obligations under these laws. To learn more about these topics, please click on the Practice Areas link.
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We Can Help Your Organization: Achieve Compliance, Implement Best Practices and Minimize Risk
At Miller Legal Group, P.C., we work with our clients to develop procedures designed to identify, screen, interview and select employees with a substantially increased likelihood of achieving your Company’s business objectives while, at the same time, ensuring legal compliance and minimizing legal exposure. For example, we help clients develop and implement legally compliant policies and procedures for substance abuse testing, physical examinations and other functional employment evaluations.
We also develop legally compliant policies, procedures and forms designed to establish and enforce reasonable and legitimate standards/expectations of performance, productivity and attendance. In addition, we prepare job descriptions and conduct job description compliance audits which not only protect against claims of discrimination and unequal pay, but also which identify essential job duties and applicable physical and mental demands of the position in question. These various steps, in turn, are critical not only to the disability accommodation process but also to the defense of disability and other related claims.
At Miller Legal Group, P.C., we also work with companies to develop and implement legally compliant workplace safety and workplace security programs, substance abuse plans and workplace wellness programs to improve employee health and productivity and, in turn, reduce employer health-related costs.
Perhaps the most difficult areas of law for employers to navigate relate to those federal, state and local laws governing leaves of absence, disability accommodation and/or workplace safety and injuries. Accordingly, we work with clients not only to help them understand and recognize those (often uncertain) circumstances which may trigger employer obligations under these various laws but also to help them navigate their often layered and/or overlapping legal obligations under these laws.
For example, we review, develop and implement leave policies, letters and forms to ensure compliance with applicable federal and California laws, put employees on notice of their obligations to their employers, and to promote consistency in the granting and denying leaves of absence and/or requests for disability accommodation. Further, we work with clients to help them balance the need for obtaining adequate information from their employees (and, if allowable, their doctors) in order to determine the employer’s applicable rights and legal obligations while, at the same time, safeguarding employee privacy rights associated with the underlying medical information.
We also help guide employers through the “interactive process” mandated for determining reasonable accommodations of an employee’s (and, where applicable, job applicant’s) disability. For example, we help employers assess the individual’s physical or mental impairment, the essential job functions, and potential reasonable accommodations that might enable the person to perform the essential duties of the position. Further, we help clients understand that the “interactive process” is an ongoing and often evolving process. Likewise, we ensure clients appreciate that failing to engage in that process, to adequately communicate with an employee or job applicant, or to adequately document all of the employer’s efforts during that process can have very expensive consequences.
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Contact a Los Angeles Disability Discrimination Law Attorney
For more information about what we do, our innovative billing options, or to schedule an initial consultation with an experienced Southern California disability discrimination lawyer, please contact us at our South Bay employment law firm by e-mail or by telephone at (310) 426-2650.