Tuesday, July 28, 2015

It Doesn’t Hurt to Ask: New CA Law Protects Right to Ask for Reasonable Accommodation Under California’s Anti-Discrimination Law

Governor Brow­­­­n recently signed into law Assembly Bill 987, overturning the wrong result in Rope v. Auto-Chlor System of Washington, Inc., 220 Cal. App. 4th 635 (2013), review denied (Jan. 29, 2014), and thereby ensuring that all Californians need not fear retaliation should they request a reasonable accommodation from their employer.


In Rope, the plaintiff sought to donate his kidney to his sister. Accordingly, he requested leave from his employer to undergo the transplant surgery and recover from the operation. After repeatedly ignoring Mr. Rope’s requests for leave, the employer eventually approved an unspecified amount of leave. However, only two months before the operation date, Mr. Rope’s employer fired him for allegedly poor performance. Importantly, Mr. Rope had received only positive performance reviews during his employment and had no disciplinary problems prior to his termination.

Mr. Rope filed suit asserting multiple claims including retaliation for requesting a reasonable accommodation under the Fair Employment and Housing Act (FEHA). The trial court dismissed his lawsuit on demurrer, including the retaliation claim. Mr. Rope appealed.

To the dismay of worker advocates statewide, the Court of Appeal affirmed the trial court’s dismissal of Mr. Rope’s retaliation claim. The appellate court interpreted the retaliation provision under the FEHA to require that 1) an employee “engaged in activities in opposition to the employer at the time of the alleged retaliation,” and 2) the employer knew about it. Id. at 653. While the Court of Appeal acknowledged that the FEHA “encompasses a broad range of protected activity,” does not require that an employee “file a formal charge,” and that “[t]he determination as to what constitutes a protected activity is inherently fact driven,” the court nevertheless held that requesting a reasonable accommodation categorically is not “protected activity” under the FEHA. Id. at 652-653. The court did not interpret an employee’s request for reasonable accommodation as “opposition” to an employer. Id. at 652-53.

Other courts have reached different results in similar circumstances, noting that “[i]t would seem anomalous … to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (in the context of a lawsuit brought under the Americans with Disabilities Act). The Third Circuit’s concern was warranted, given the outcome in Rope.

Assembly Bill 987 corrects the anomalous result in Rope by ensuring that employees can request reasonable accommodations in the workplace without fear of retaliation. Employers should take notice that, separate from their duty to engage in the interactive process, they may not retaliate against an employee for requesting a reasonable accommodation.


If you believe your employer retaliated against you because you requested a reasonable accommodation, please contact Bryan Schwartz Law.

Monday, July 13, 2015

“Sharing Economy” is Not Sharing the Wealth: Independent Contractor Misclassification a Growing Problem

An increasing number of workers are classified as freelancers and independent contractors in the new “sharing” economy, according to an article in today’s New York Times. Indeed, the Times reports that the number of part-time independent contractors and freelancers has increased by more than fifty percent since 2001. The abuse of independent contractor status is directly connected to the income gap and the shrinking middle class in America
The Times article describes that, in recent years, companies have increasingly relied on independent contractors, freelancers, temps, and outsourcing to complete work that at one time would have been done by full time employees. As a result, workers have gained more flexibility in setting their own schedule, but lose out on the steady income stream they could once depend on.
            The corporate motivation for these new models dates back to the 1970s when companies where encouraged to focus on their “core competencies.” This led to companies outsourcing more and more tasks to non-employees and cutting back heavily on their payroll expenditures.
As these practices have become more popular, wages have dropped. According to a study by Michael Greenstone and Adam Looney, men were making substantially less in 2009 than men of the same age and education level were making in 1969, adjusted for inflation.
With these changing practices come new legal challenges. The article cites to a California Labor Commissioner decision regarding Uber, the well-known tech company that employs nearly 200,000 drivers, labeling them “independent contractors.” The Labor Commissioner ruled that an Uber driver had been misclassified and was in fact Uber’s employee. It remains to be seen how this decision, which is under appeal, will affect other Uber drivers. Bryan Schwartz Law’s co-counsel, Goldstein Borgen Dardarian & Ho, has a class action along the same lines pending in the United States District Court for the Northern District of California (Gillette v. Uber Technologies Inc.) and a similar action is pending against Lyft in the same court (Cotter v. Lyft Inc.).
The distinction between being an independent contractor and being an employee can be vast for workers. For example, nonexempt employees are guaranteed meal and rest breaks and overtime pay, while independent contractors are not. Independent contractors are often paid by the task, rather than by the hour, which can lead to workers being compensated below the minimum wage for uncompensated work. Independent contractors receive no Social Security, Medicare, unemployment, and other benefit contributions from the places they work, while employees receive all these protections.
The end result is that when workers are misclassified as independent contractors rather than employees, their employers often illegally under compensate them. Bryan Schwartz Law has represented many workers in misclassification cases nationwide, negotiating millions of dollars in back wages and penalties for them.

            In you have concerns that you may have been misclassified in your job please contact Bryan Schwartz Law

Friday, June 26, 2015

Landmark U.S. Supreme Court Ruling Extends Right to Legally Recognized Same-Sex Marriage across the Country


The United States Supreme Court issued a huge victory today for proponents of marriage equality and equal protection through its ruling in Obergefell, et al. v. Hodges, Director, Ohio Dept. of Health, et al. The opinion states:
“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold – and it now does hold-that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Slip Op. at 28.
Today’s five-to-four decision expands the rights of same-sex couples to marry and receive the same protections afforded opposite-sex couples nationwide. LGBTQ persons can no longer lawfully be denied the right to marry or have their spouse and children recognized as such under the law.
 Following the watershed decision in United States v. Windsor, 133 S. Ct. 2675 (2013) invalidating the Defense of Marriage Act which defined marriage as the union of a man and woman in federal law, same-sex couples have exercised their right to wed only in states which allow and/or recognize same-sex marriage. Plaintiffs, fourteen same-sex couples and two men whose partners are deceased, demonstrated the injury suffered by those denied the rights and benefits of marriage afforded to opposite-sex couples. For example, Plaintiff James Obergefell, met his partner over two decades ago and married his partner in Maryland months before his partner’s death as a result of a debilitating disease. Despite making a committed union with his partner, Obergefell was not listed on his partner’s death certificate as his spouse in their home state of Ohio. Plaintiffs April DeBoer and Jayne Rowse celebrated a commitment ceremony in Michigan before expanding their family to include three special needs children.  Yet, due to Michigan’s prohibitions on same-sex couple adoption, if tragedy were to strike yet the parent prohibited from adopting the child survived, their children could be considered orphaned.
The Supreme Court addressed the question of whether the Constitution compels the right to marry for same-sex couples under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  The majority opinion held that marriage is a fundamental right under the Constitution and could no longer be denied same-sex couples under the law. Drawing from the decisions in Loving v. Virginia, 388 U.S. 1 (1967), Griswold v. Connecticut, 381 U.S. 479 (1965), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), the Court found the right of same-sex couples to marry inherent in the concept of individual autonomy and fundamental because of the support it provides to the union of two committed individuals. The Court held that basic components of many marriages related to child-rearing, procreation, and education also supported their conclusion. Additionally, the Court  identified precedent protecting the right of married couples not to procreate to reject respondent’s arguments that the right to marry must be conditioned on “the capacity or commitment to procreate.” Slip Op. at 16. The Court discussed rights and protections denied to same-sex couples, many of which concern workers’ rights including rights and benefits of survivors, health insurance, and workers’ compensation benefits, to conclude that “[u]nder the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.” Slip Op. at 19.
Bryan Schwartz Law applauds the Supreme Court for overruling the infringement of central precepts of equality as it concerns same-sex couples. The firm joins in celebrating this groundbreaking victory for marriage equality.

Thursday, June 25, 2015

King v. Burwell: Supreme Court preserves Obamacare’s tax subsidies helping millions of Americans afford health insurance

               Millions of Americans who have suffered from unaffordable health care for decades find a reason to celebrate today. The Supreme Court (6-3)[1], through King v. Burwell, affirmed that refundable tax credits for health insurance coverage purchased are available to those individuals with household incomes between 100 percent and 400 percent of the federal poverty line, regardless of whether they enroll in an insurance plan through a Federal or a State Exchange.[2] This decision preserves one main tenet of Obamacare, which helps millions of poor and middle-class people buy affordable health insurance.

I.                    The Patient Protection and Affordable Care Act (the “Affordable Care Act” or the “ACA”) has adopted three interlocking reforms. 

              The majority started its opinion by explaining the background and purposes of the ACA because this case is closely related to whether the Congress intended the ACA’s three interlocking reforms to equally apply in each State regardless of who establishes the State’s Exchange.  In general, the ACA adopts the three key reforms that made the Massachusetts health system successful.

              The first reform consists of the guaranteed issue and community rating requirements. These two requirements bar insurers from denying coverage to anyone because of their health (the guaranteed issue requirement) and from charging a person higher premiums because of their health conditions (the community rating requirement) to ensure that everyone has equal access to health insurance coverage. However, these two requirements created an unintended “adverse selection” consequence: people do not want to purchase health insurance until they become sick. As a result, insurers are forced to increase overall premiums to account for the fact that only those who are already sick rather than healthy buy insurance, which in turn creates an economic “death spiral”—as premiums become higher, the number of people buying insurance sinks, and the uninsured number dramatically increases.

               Years after Massachusetts adopted only these two requirements to its state health insurance system and experienced the death spiral, the second and the third reforms were added to its health system – coverage and subsidizing requirements –and the ACA also adopts them. Under the coverage requirement, each individual is required to maintain health insurance coverage or make a payment to the IRS. Given healthy people are required to purchase health insurance, health insurance premiums may become lower. Also, low-income individuals are exempt from the coverage requirements when they have to spend more than eight percent of their income on health insurance. Yet, to avoid adverse selection or death spiral caused by exemptions, refundable tax credits are available to subsidize individuals with household incomes between 100 percent and 400 percent of the federal poverty line. Accordingly, these three reforms are interlocking with each other and closely intertwined. When interpreting ambiguous phrases under the ACA, the Supreme Court emphasizes consideration of whether the purposes of these requirements may be served.   
      
II.                  The issue before the Court: Is the phrase, “an Exchange established by the State” under Section 36B of the Internal Revenue Code ambiguous?

In addition to the three reforms, the ACA also requires the creation of an “Exchange” in each state. An Exchange is a marketplace where people can compare and buy different types of health insurance. The ACA gives each state the opportunity to establish its own State Exchange but provides that the federal government must establish the Federal Exchange in the state if the state chooses not to establish one. The issue before the Supreme Court was whether tax credits could be available in the states that have a Federal Exchange rather than a State Exchange. In other words, the question is whether “Federal Exchanges” are included under Section 36B of the Internal Revenue Code, a critical component of the ACA, even when Section 36B provides that refundable tax credits are subsidized to those who enroll in health plans through “an Exchange established by the State under Section 1311 of the ACA.” See 26 U.S.C. §36B(b)(2)(A). The IRS promulgated a new rule that makes tax credits available regarding both State and Federal Exchanges. 

Four petitioners currently living in Virginia who could only enroll in a health plan through a Federal Exchange challenged the IRS’s rule and argued that they should not receive any tax credits because Federal Exchanges are not “established by the State.” Without the tax credits, the petitioners argued, they would be exempt from the ACA’s coverage because their cost of buying health insurance would exceed eight percent of their income. See 26 U.S.C. §5000A(e)(1). Both the District Court and the Fourth Circuit deferred to the rule and interpretation made by the IRS. The Supreme Court granted certiorari and affirmed the Fourth’s Circuit’s decision on different grounds. 

                The High Court denied deferring to the IRS’s new rule and interpretation and held it was unlikely that Congress would have delegated the IRS to determine the issue of tax credit availability, given this should be a question of deep “economic and political significance.” Therefore, the Court reasoned that it should determine the correct reading of Section 36B. In assessing the ambiguity of a statute, the Court first decided whether the language is plain by reading the words “in their context and with a view to their place in the overall statutory scheme.” Evaluating the term “Exchanges” used in different provisions under the ACA, the Court held that the meaning of the phrase “established by the State” is ambiguous in context and rejected petitioners’ arguments to adopt the plain meaning of the phrase. For example, assuming this phrase excludes the Federal Exchanges, nobody purchasing insurance through Federal Exchanges would be qualified for tax credits - seemingly an interpretation contrary to the ACA’s expectation that State Exchanges and Federal Exchanges are equivalent.

Given that the phrase was ambiguous, the Court further decided “Federal Exchanges” must be included in Section 36B to avoid creating the “death spirals” that the Congress enacted the ACA to prevent. The rationale is simple: If tax credits are not available to Federal Exchanges, excessive numbers of exemptions will destroy the coverage requirement, and adverse selection will appear. Justice Roberts emphasized that Congress “passed the Affordable Care Act to improve health insurance markets, not to destroy them.” 

             Obamacare also mandates employers with 50 or more employees to offer their full-time employees health insurance coverage. (Full-time employees are defined as those who work 30 hours or more per week).

Today Bryan Schwartz Law celebrates this important step forward for American access to affordable health care.





[1] Chief Justice Roberts wrote the majority opinion and was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan. Justice Scalia filed a dissenting opinion, in which Justices Thomas and Alito joined.
[2] At this point, 16 States and the District of Columbia have established their own State Exchanges, whereas the remaining 34 States have elected not to establish their own Exchanges and relied on the Federal Exchanges established and operated by the Secretary of Health and Human Services. 

Wednesday, June 24, 2015

U.S. Supreme Court Denies Certiorari Review of Bridgestone, Declining for a Second time to Consider a Challenge to PAGA

PAGA stays on track after Bridgestone
cert petition denied.
On June 1, 2015 the U.S. Supreme Court denied a petition for certiorari in Bridgestone Retail Operations, LLC v. Brown (“Bridgestone”), 2015 WL 86028, No. 14-790. The Bridgestone petition challenged the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles (“Iskanian”) (2014) 59 Cal.4th 348, holding that representative claims under the California Labor Code Private Attorneys General Act, Labor Code section 2698, et seq., are not preempted by the Federal Arbitration Act (FAA) and may not be compelled to individual arbitration since they, like qui tam claims, are brought on behalf of the state. Earlier this year, the U.S. Supreme Court declined to consider a petition for certiorari of the Iskanian decision itself.  By declining to accept a second challenge to Iskanian, the High Court has given employee advocates a reason to feel renewed confidence that they may proceed in court with PAGA actions, whether or not their clients are otherwise subject to individual arbitration agreements.

PAGA permits an employee to recover civil penalties for wage violations on behalf of California’s Labor Workforce Development Agency, for redistribution to the State and all aggrieved employees. As we have discussed in previous blog posts, Iskanian holds that employees cannot waive the right to bring representative actions under PAGA in a court of law by signing mandatory arbitration agreements. AT&T Mobility v. Concepcion (2011) 131 S.Ct. 1740 and its progeny interpret the FAA as permitting employees to give up the right to bring class actions asserting other claims by signing agreements to individually arbitrate those claims. However, in Iskanian, the California Supreme Court reasoned that PAGA is an enforcement mechanism designed to carry out California’s interest in ensuring compliance with state wage laws, and not merely a private litigant’s claim. Therefore, while employers may argue under AT&T Mobility that employees have signed away their rights to bring ordinary class claims alleging wage violations, employees’ representative PAGA claims remain unaffected.

On June 3, 2015 the Ninth Circuit heard oral arguments in three cases presenting questions of whether the FAA requires enforcement of PAGA waivers. See Hopkins v. BCI Coca-Cola Bottling Company of Los Angeles, No. 13-56126; Sakkab v. Luxottica Retail North America, Inc., No. 13-55184; and Sierra v. Oakley Sales Corp., No. 13-55891. Like the U.S. Supreme Court when presented with Iskanian and Bridgestone – the Ninth Circuit should not interfere with California’s right to enforce its own wage laws. Stay tuned. 

Wednesday, June 3, 2015

Ninth Circuit Again Strongly Disapproves of Reversionary Settlements

Yesterday’s decision by the Ninth Circuit in Allen v. Bedolla is yet another reason that class counsel should not agree to a reversionary settlement. As discussed in previous posts to this blog in 2009 and 2014, as well as other publications in 2010 and 2014, such settlements should generally be rejected out of hand.


In Bedolla, the Ninth Circuit vacated final approval of a settlement agreement with a reversion to the defendant, again signaling its strong disapproval of such clauses. Allen v. Bedolla, WL 3461537 (9th Cir. June 2, 2015).

At issue in Bedolla were wage and hour complaints regarding uncompensated waiting time violations and cash disbursement machines that charged employees a fee to receive their paychecks. The parties settled the case pre-certification for a gross settlement fund of $4.5 million. However, the devil is in the details. All the money not paid towards attorney’s fees, administrations costs, or to class members who submitted claims was reverted to the defendant employer.

In vacating this settlement, the Ninth Circuit only reviewed the settlement’s procedural fairness, i.e., whether the trial court properly explained its decision that the settlement was fair, reasonable, and adequate – not whether the settlement itself was a good deal. Id. Following its decision in In re Bluetooth Headset Products Liability Litigation, the court was troubled by the presence of a reverter to the defendant because reversionary settlements are a “subtle sign[] that class counsel have allowed pursuit of their own self-interests … to infect the negotiations.” Id. (internal citation omitted). Even more troubling was the fact that the attorney’s fees award was three times the “maximum possible amount of class monetary relief.” Id. The appellate court was dismayed that these seemingly self-interested terms were not thoroughly explained by the trial court, and accordingly, remanded the case to seek more thorough justification of the reversionary provision (among other worrisome settlement conditions).

The Ninth Circuit’s decision makes sense. As explained by the Federal Judicial Center’s publication, “Managing Class Action Litigation: A Pocket Guide for Judges”:

A reversion clause creates perverse incentives for a defendant to impose restrictive eligibility conditions and for class counsel and defendants to use the artificially inflated settlement amount as a basis for attorney fees.

If you anticipate a low participation rate, as the attorneys in Bedolla did, then direct any unclaimed funds on a pro rata basis to those class members who previously submitted claims. Bedolla, WL 3461537 at *5 n. 4 (“class counsel said that he would consider it a success if even 10% or 15% of the class made claims”). For example, if a class member in the Bedolla case initially received $25, then that member would receive $2.50 for every additional $1 received by a class member that initially received $10. Pro rata distribution can be done in a second payment, or (more cost-effectively) by increasing the allocations before the initial distribution.

Another option is to designate a cy pres beneficiary that receives any unclaimed funds. This option is particularly advantageous when it is difficult to contact class members or when the recovery for any one class member is likely to be relatively low. One famous example is class members that were overcharged on their taxi fares. Daar v. Yellow Cab. Co., 135 Cal. 2d. 695 (1967). In such cases, the defendant should not be able to benefit from low participation. Instead, a nonprofit that serves the affected community should be awarded any unclaimed funds. For example, in workers’ rights cases, funds should go to the Legal Aid Society-Employment Law Center; Impact Fund; National Employment Law Association Institute; the Foundation for Advocacy, Inclusion & Resources, or a similar organization.

Whatever choice you make, avoid problematic reversionary clauses, or risk your carefully negotiated settlement getting struck down on appeal.



Monday, June 1, 2015

If You Employ Nurses, Know Their Disability Rights

This article, co-authored by Bryan Schwartz Law's principal and Eduard Meleshinsky, is reprinted with the permission of Bloomberg BNA’s Health Law Reporter. The original article is available at http://bryanschwartzlaw.com/BNA-05-28-15.pdf. 

Nurses on the front lines of patient care have a significantly greater likelihood of sustaining a workplace injury than average private sector workers. The Bureau of Labor Statistics reports that nurses suffer greater numbers of musculoskeletal injuries than either firefighters or police patrol officers. Press Release, Bureau of Labor Statistics, Department of Labor, USDL-14-2246, Nonfatal Occupational Injuries and Illnesses Requiring Days Away From Work, 2013 (Dec. 16, 2014), available at http://www.bls.gov/news.release/pdf/osh2.pdf. As a result, health care employers need to be particularly mindful of their legal obligations under the Americans with Disabilities Act (ADA) and state disability laws, separate from the requirements of the Family Medical Leave Act (FMLA), state medical leave laws, and workers’ compensation statutes.

I. The ADA Creates Strong Protections for Nurses

The Americans with Disabilities Act (ADA) ensures that people with disabilities can “fully participate in all aspects of society.” 42 U.S.C. § 12101(a). Title I of the ADA, the section addressing employment, provides that a covered employer many not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Under the act, discrimination includes failing to make reasonable accommodations to an otherwise qualified job applicant or current employee unless such accommodations would constitute an undue hardship on the covered employer. 42 U.S.C. § 12112(b)(5)(A). Determining whether a reasonable accommodation creates an undue hardship is a fact-intensive inquiry, and must include consideration of “the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility” and “the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity),” among other factors. Equal Employment Opportunity Commission, Notice No. 915.002, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002) (EEOC Notice), available at http://www.eeoc.gov/policy/docs/accommodation.html. See also 42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p)(2). Accordingly, proving a reasonable accommodation constitutes an undue hardship is a difficult task for all but the smallest health care employers. See, e.g., Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 142 (2d Cir. 1995) (denying summary judgment because “nothing inherently unreasonable or undue in the burden that an employer would assume by providing an assistant to an employee with disabilities”); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 649 (1st Cir. 2000) (denying summary judgment on the basis that unpaid leave for more than one year was not an undue burden as a matter of law); Garza v. Abbott Labs., 940 F. Supp. 1227, 1241-43 (N.D. Ill. 1996) (summary judgment denied because $9,500 voice recognition system was not an undue burden as a matter of law); Equal Employment Opportunity Commission, Questions and Answers about Health Care Workers and the Americans with Disabilities Act, at Example 22 (2002) (EEOC Q&A) (presenting hypothetical where purchasing a $1,500 mechanical patient lifting device is not an undue hardship for a large hospital seeking to accommodate a nursing assistant with a back injury), available at http://www.eeoc.gov/facts/health_care_workers.html.

Furthermore, an employer cannot rely on generalized stereotypes of disabilities in deciding whether to grant a request for a reasonable accommodation. Instead, an employer must enter into a good-faith interactive process with an eligible employee to determine whether any reasonable accommodations are possible based on an individualized assessment of the employee’s restrictions and the essential duties of the job. 49 C.F.R. § 1630.2(o)(3).

II. Consider the Full Range of Accommodations Nurses May Require 

While injury prevention should be every employer’s goal, nurses likely will continue to account disproportionately for on-the-job back injuries. Accordingly, hospitals should design their leave and accommodation policies to consider the unique facts at issue when nursing staff is injured. When a nurse suffers a back or other type of injury, she or he often remains capable of performing the vast majority of her job duties. If the back injury substantially limits her in one or more major life activities (personal care, driving for long periods, lifting, bending, sitting, working, etc.), she or he will have an ADA-covered disability. See, e.g., EEOC v. AutoZone, Inc., 630 F.3d 635, 637 (7th Cir. 2010) (employee sustained an injury to his back that limited his ability to carry out many activities requiring physical exertion, such that a reasonable jury could find him substantially limited in the major life activity of personal care); Norris v. Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418 (N.D. Cal. 1996), aff’d, 191 F.3d 1043 (9th Cir. 1999), cert. denied 528 U.S. 1182 (2000) (employee with a back injury had an ADA covered disability because of acute pain and substantial limitations on driving, lifting, and working in a broad class of jobs). It is incumbent on the employer to perform an individualized assessment of the injured nurse and determine whether the nurse can perform her or his essential job duties with or without reasonable accommodations. Many health care employers make the mistake of thinking too narrowly about what constitutes a reasonable accommodation. Under the ADA, the following is a nonexhaustive list of reasonable accommodations:
  • Job restructuring,  
  • Modified or part-time schedule,
  • Leave, and, if no other reasonable accommodation exists, 
  • Reassignment 
See EEOC Notice; See also 42 U.S.C. § 12111(10)(B); 29 C.F.R. § 1630.2(p)(2).

1. Job restructuring 

An employer can choose to modify injured nurses’ job duties such that they are not required to perform certain physically demanding tasks permanently, or temporarily while recuperating. Healthy nurses can be assigned more strenuous activities while injured nurses remain capable of serving many less physically demanding functions in a hospital or medical facility, such as calling patients before a procedure and medical coding. Job restructuring is often a sound business decision given the costs of training new nurses. Hospital Patient and Health Care Worker Injury Protection Act, Ch. 554, § 2(d), 2011 Cal. Legis. Serv. (codified at Cal. Lab. Code § 6403.5) (California Legislature found that the cost “to train and orient each new nurse” was “between sixty thousand dollars ($60,000) and one hundred forty thousand dollars ($140,000)”).

2. Modified or Part-time Schedule 

At times, an injured nurse may be released back to work by a doctor, but only with a reduced or modified schedule. Honoring such a schedule is critical for injured nurses who can return to work, but who, for example, still require time-intensive physical therapy to regain physical functioning. Health care employers must consider allowing a modified or part-time schedule unless doing so would impose an undue hardship on operations. See, e.g., Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 36 (1st Cir. 2000) (rejecting employer’s “general statements regarding the snowball effect” of allowing disabled employee part-time schedule because “[t]he ADA explicitly states that ‘job restructuring’ and ‘part-time or modified work schedules’ are potential reasonable accommodations”) (citing to 42 U.S.C. § 12111(9)(B)).

3. Leave 

Often, a back injury can last more than the 12 weeks of medical leave guaranteed by the FMLA. However, inflexible leave policies that apply a one-size-fits-all approach to injured nurses violate the ADA. Additional leave should always be considered as a reasonable accommodation regardless of the injured worker’s FMLA eligibility, sick time, vacation time, or other benefits. Humphrey v. Mem’l Hospitals Ass’n, 239 F.3d 1128, 1137-39 (9th Cir. 2001) (employer violated ADA by failing to consider leave of absence in carrying out its “mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations”); Press Release, Equal Employment Opportunity Commission, Princeton Healthcare Pays $1.35 Million to Settle Disability Discrimination Suit with EEOC (June 6, 2014) (EEOC Release), available at http:// www.eeoc.gov/eeoc/newsroom/release/6-30-14.cfm (employer’s leave policy that “merely tracked the requirements of the federal Family Medical Leave Act” violated the ADA); Shannon v. City of Philadelphia, No. CIV.A. 98-5277, 1999 WL 1065210, at *5 (E.D. Pa., Nov. 23, 1999) (reasonable accommodation may require an employer “to grant liberal time off or leave without pay when paid sick leave is exhausted and when the disability is of a nature that it is likely to respond to treatment [or] hospitalization”) (citing Department of Labor regulations for disability accommodation law covering federally funded programs). The EEOC is targeting inflexible leave policies as one of its regulatory priorities, and has successfully obtained seven-figure outcomes and injunctive relief against health care employers for their inflexible leave policies. See EEOC Release. Health care employers should revisit any leave policies providing for automatic termination following a fixed period of leave.

4. Reassignment 

Reassignment to a vacant position is an often misunderstood form of reasonable accommodation, though it is required under the ADA. 42 U.S.C. § 12111(9)(A). Reassignment should be used as an accommodation of last resort after the employer and employee agree that no reasonable accommodation is possible in the employee’s current position either long-term or permanently. If a nurse’s injury is so severe as to render her or him unable to safely handle patients or otherwise limits performing essential job functions, and no other reasonable accommodations exist, the health care employer must consider reassignment. If any vacant position is available for which the injured nurse is qualified, then the employer must reassign the nurse without a competitive application process. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (“ ‘reassignment’ must mean something more than the mere opportunity to apply for a job with the rest of the world.... ‘reassign’ must mean more than allowing an employee to apply for a job on the same basis as anyone else. An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been ‘reassigned. . . .’ ”). However, the ADA does not require preferential reassignment if the vacant position would constitute a promotion. See EEOC Notice, at Question 24. Reassignment must be considered not just in the single facility in which the injured nurse previously worked, but at all of the employer’s locations. EEOC Notice, at Question 27 (employer’s obligation to reassign is not “limited to those vacancies within an employee’s office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area”). Disabled nurses still have a wide range of skills that can be deployed in a variety of positions such as medical coding, auditing, patient interviewing (including pre-visit calls), training other health care workers, quality assurance, supply management, infection control, and many more. In addition to the medical skills mentioned above, hospitals have many stationary (e.g., administrative) positions that an injured nurse could perform effectively. Frequently, employers do not consider all of these potential positions that a disabled nurse can successfully occupy. One overlooked position is case manager, with duties such as providing day-to-day case management to patients by “documenting the costs of care, preparing reports regarding a plan of care, and identifying and implementing medical services to meet the needs of” patients. Rieve v. Coventry Health Care, Inc., 870 F. Supp. 2d 856, 864 (C.D. Cal. 2012). A case manager position utilizes nurses’ wealth of medical knowledge and patient interaction skills without significant physical exertion. A good-faith effort by health care employers likely would uncover similar positions within their organizations should reassignment be necessary. In general, “Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the [ADA] if a reasonable accommodation would have been possible.” Humphrey, 239 F. 3d at 1137-38 (internal citations and quotation marks omitted).

III. Workers’ Compensation Compliance Does Not Equate to ADA Compliance. 

Because nurses are frequently injured on the job, they often file a claim for workers’ compensation benefits in conjunction with taking a medical leave. A common mistake committed by health care employers is substituting compliance with a workers’ compensation statute for compliance with the ADA. This mistaken belief can lead to costly liability. The authors of this article represented a registered nurse in a disability accommodation action against her health care employer for failure to timely accommodate her disability. She injured her back at work and went on leave. When she returned, she was reassigned because her physical restrictions prevented her from serving in her previous position. After three months, however, she was notified that she would be put on indefinite, unpaid leave until her restrictions were determined to be “permanent” by the workers’ compensation medical examiner—a process that can take years. Indeed, she was forced out on unpaid leave for 19 months without any attempt by the employer to explore reasonable accommodations such as reassignment to a different position. Conflating ADA obligations with workers’ compensation obligations, or those under leave laws or other statutory schemes, can lead to liability. In the case just discussed, the nurse was forced out of her job without any consideration of a reasonable accommodation (of which there were many possible) because of a mistaken belief that no accommodation was necessary until the workers’ compensation process had been completed.

IV. Conclusion. 

A prudent health care employer will ensure that its ADA policy is reviewed for compliance with the ADA’s demanding requirements. If you employ nurses, you should be helping disabled nurses to keep utilizing their valuable talents and experience in your service, and in service of your patients.