Lupe & Brian: Welcome to another episode of Sjogren’s Strong.
Brian: This is Brian.
Lupe: And this is Lupe.
Brian: And today we are joined by Teresa McQueen from Sapphire Legal. Teresa specializes in Employment Law, Human Resources Consulting, Business Etiquette Training.
Lupe: Teresa also has a podcast focusing on the same titled Workplace Perspective. Teresa, welcome to the show.
Teresa: Thank you. Thank you for having me.
Brian: Well, we appreciate you coming on the show. A lot of our listeners and followers have legal questions in regards to their autoimmune and work place accommodations. So first and foremost, we want to start off by saying you are licensed in the state of California, to work. Correct?
Teresa: Yes. I’m only licensed in the state of California. Um, and so most of my experiences with a state law, but I do have some experience with federal laws. So I can tell you a little bit about the differences between federal law under the ADA and Title 7. But because California is so protective of their employees, we have, added the fair employment housing act locally, that’s far more protective than federal law. So that’s usually what we apply in California.
Brian: So, to our listeners, we want to be 100% clear if you live outside of California or outside of the U.S., don’t storm into your boss’s office and say you must, you must, you must.
Lupe: A lot of them, actually, do.
Teresa: Yeah, no, no, definitely. Um, will definitely be California
Brian: First things first. Sjogren’s is an autoimmune, one of the biggest symptoms is chronic fatigue. And what Sjogren’s is and what the auto immune’s about is your immune system is attacking salivary or moisture producing glands. So, dry mouth, dry eyes, um, those are the big issues but chronic fatigue comes with that. So that’s what Sjogren’s is about in a nutshell. Can you walk us through the legality surrounding a reasonable accommodation versus an employer’s claim of undue hardship to their business operations?
Teresa: Yeah, let me, let me back up a little bit for us to say. So there is a limit on to what law is applied and what employers, based on how many employees they have. So, for example, for the Fair Employment Housing Act to apply to an employer, to require them to provide a reasonable accommodation and to engage in an interactive process is 5 or more employees.
Teresa: So, a California company, has to have 5 or more employees before the Employment Housing Act Applies. At the federal level, for the ADA to apply or Title 7, it’s 15 or more employees. So, there’s a little bit of a difference there. And when it comes down to it, it’s kind of interesting, a lot of people think it’s all the duties, all rely on the employer, but it’s actually a two way street. So, once an employer finds out that there is a need for an accommodation, and that can be any way.
Teresa: Either, um, I don’t advise anybody to walk into their employers off and go, oh, I have such and such, you know, and I need an accommodation. It’s however they find out if that’s the employee saying, look, I have a condition that requires this type of an accommodation. And usually that’s backed up by a certification from a healthcare professional or health care provider.
Teresa: Or the employer can be told, hey, I know so and so is having some trouble and I think they’re going to need us to help work with them to be able to do the job, there seems to be a performance issue. Or that’s how it’s found out, there’s a performance issue and it starts a conversation, where the employees say well, I’m actually, you know, I’m suffering from the effects of a medical condition or something like that.
Teresa: It’s never about what the condition is because that really doesn’t matter. It’s very important to the person who has the condition, don’t get me wrong, but from an employer perspective, all that matters is kind of a, what do you need and how can we provide it? And then once that notification is there, however it comes to the employer, then the duties sort of kick in. And there’s duties on both sides.
Teresa: So, an employer has a duty to, once it knows that there’s a need for reasonable accommodation, they have a duty to conduct what’s called an interactive timely, good faith interactive process. And that’s a conversation an actual conversation with the employee to find out, what do you need and how can we provide it?
Teresa: And then the duty, you know, the duty on the other side, the employee’s side, the person who needs the accommodation is to actively participate in that meeting, in that conversation so that you can voice what it is you need or what you think you need in order to perform what they call the essential functions of your job.
Teresa: Those core things about your job that are actually needed to perform it. Not the peripheral stuff, like, you see a lot of job descriptions where it’s oh, morale builder as part of your job description. Well, that’s not typically essential.
Teresa: Um, something along the lines, if you’re the, you know, if you’re a widget maker and you’re job on the widget line is to pull the lever that drops the widgets onto the conveyor belt. That’s a pretty essential function. There are some other things that go along with that that are probably not quite as essential and you could get some help doing.
Teresa: That’s what starts the process, that interactive process the knowing that there’s a need, um, and having that conversation about what can we do. Does that kind of answer your question?
Brian: Yes, and a few others.
Lupe: All of them.
Teresa: I know you asked me a question and you’re going to have to stay up till I take a breath. Sorry about it.
Brian: No, it’s great information. And it’s the information some of our listeners have been talking about. So, it’s right up the alley.
Teresa: You, once that conversations been had, this is the part that sort of rife with confusion. And it’s also at a point where it can become very damaging to the employer – employee relationship, where there’s miscommunication or misinformation on both sides. So, maybe I can help with that and, and talk a little bit more about what actually happens next.
Teresa: Um, the duties don’t stop there. The duty to have that conversation, once you’ve had that conversation, it’s what kind of happens next that really makes the difference to everybody. It’s what can we do? Is there an accommodation that we can provide that’s going to allow you to perform the essential functions of your job?
Teresa: And there’s some strictures on the employer side, there’s in the statute, it allows for an exception to providing a reasonable accommodation, if it would be considered to be an undue hardship on the employer or if there’s a the health and safety issue.
Teresa: Now you can imagine how easily that’s misinterpreted
Teresa: You know, a undue hardship, the employers focus tends to be looking at, you know, people in seats, workers doing their job. And when the worker isn’t in the seat doing their job, they tend to look at that as an, as a hardship. It’s a hardship on the company when you’re not able to perform your job. But it really has to be more than that.
Teresa: There’s some key employee issues that kind of go along with that, but we’re just talking just, you know, just average, just a regular employee. An undue hardship really has to be something that’s going to have a definite impact on the company. A lot of times it’s um, they’re looking for, not every time, but a lot of times they’re looking for something like a financial impact, that is just too difficult to overcome or an unreasonable accommodation, based from a financial perspective.
Teresa: I had a client one time who needed an accommodation and they were a cashier and the accommodation that the employee wanted and couldn’t see past was a refit of the cashier station. And it got to be a sticking point, um, in the discussions. And the employer kind of went away and thought, well, how can we do this and can we make it work?
Teresa: And in an analysis of reworking that station, it was actually cost prohibitive to do it. But there were other things that could be done. And going back to that, uh, duty part, an employer doesn’t have a duty to do exactly what the employee requests.
Teresa: In other words, if an employee comes into that interactive meeting and says, okay, this is the accommodation, I need x, y, and z. And I think we can accomplish that this way.
Teresa: It’s not that cut and dried. It’s a discussion. It’s a two way discussion. The employee better in a much better position to know the ins and outs of their job, to offer a lot of input on how that accommodation could be given. And it’s the employer’s job to then take those recommendations with their knowledge of the broader picture of how the company works and the finances and work resources and all of that to think about, okay, well we might be able to do that, but what about this?
Teresa: And it’s that two way street that really helps figure out the best accommodation, because that’s what the duty is. It’s to require that a reasonable accommodation, not necessarily what the employee wants and not necessarily just what the employer wants to do, but something that’s reasonable.
Teresa: So, for my cashier example, that turned into a litigation and it became quite apparent that, that interacted process had broken down because when we started asking about reasonable things, like, well, wouldn’t it be reasonable for the person who’s the cashier instead of twisting, which was the problem from the, you know, from the scanner to the cash register apart, um, to simply pick up their feet and turn their body. And boy that just, that silence the room. Nobody knew what to do with that with like, well, yeah, it is kind of reasonable isn’t it?
Teresa: But because it had turned into such an adversarial thing, the employee wanted one thing, the employer was not actually saying, no, we can’t do that. And it got stuck there. So, that the reasonableness never came out. Because that was quite a reasonable accommodation when it got right down to it.
Brian: Yeah. I mean, if the work surfaces had to be lowered to accommodate somebody shorter, but that person shares that workstation, that would be considered unreasonable. Correct?
Teresa: Yeah. If it was a permanent station. But in that, given that, let’s take that example. Let’s say it’s ah, it’s a desk. So with the dual workshare position and they share the same desk on different days or whatever it is, or different shifts. It might actually not be unreasonable to swap that desk out with one that you can actually move up and down. That would be reasonable if it’s not cost prohibitive.
Teresa: Again, that kind of goes to the undue hardship. So, how much are those desks? How much would it be to bring one in and you know, do that kind of an accommodation thing. So it really is a case by case, meeting of the minds, where you’re sitting down and having that conversation and that exchange of knowledge to kind of solve the problem.
Lupe: Is employee required to provide medical records for any accommodations that they asked for?
Teresa: Not medical records. In fact, that’s a really good point. This goes back again to the duties. So, an employer has a duty to provide a reasonable accommodation, right? For a known disability. And in that regard and fulfilling that they can say to the employee, we’re going to help you out. Let’s start moving forward. Let’s start having that conversation.
Teresa: But if we don’t have it yet, we’re going to need certification of the need for an accommodation. And that can come from a healthcare professional. If it’s a chiropractor or if it’s a doctor or if it’s a surgeon. You know, where ever that professional certification comes from.
Teresa: The employer is entitled to that. From the employee’s perspective, they have a duty to provide the certification that’s asked for. And what they are not required to do though, is to turnover, medical records because, as I said in the beginning, it’s not about the condition.
Teresa: The condition doesn’t matter. It doesn’t play into it. It’s what the accommodation is. And a certification, a good one, that’s provided by an employer, is very specific to the doctor or to the healthcare provider. To say, please let us know what the accommodation is. Do not tell us what the condition is. Do not reveal, you know, don’t reveal, give us any information that would reveal what the condition is. Because that’s not the issue.
Teresa: It doesn’t matter what you have, what matters is what you need and how we can provide that.
Lupe: Because of HIPPA also.
Teresa: Yeah. Because of HIPPA, there’s a lot of things. And the discrimination, you know. So, back when, um, I think we’ve, one of the ways we’ve evolved as a society; if you think back, a while ago, you know, AIDS for example, has such a stigma. It has such a social stigma, attached to it. That finding out something like that was an opportunity to be discriminated against. Um, it was a reason to, you know, make the working place very difficult for this person or to outright terminate someone in violation of the protections that are in place now.
Teresa: So you can see how something, is there a mainstream disability? I don’t take alcohol for example, there is a point where something like that would need to be accommodated depending on the circumstances. But you could see where if that came out or a drug problem, how, if that became the focus, you know, that’s prime ground for acting in a way that could be a discriminatory, based on the protect the classification of having a physical or mental disability.
Lupe: What is a reasonable course of action if an employee feels hostilities due to any requests?
Teresa: Well, I think, and this is the, you know, this is the workplace civility and workplace relationships side of me.
Teresa: I think the best thing to do, I do think from a legal standpoint, before you take any sort of action, you really need to give the employer the opportunity to do the right thing. And I’ve said that numerous times, uh, you know, doing intake calls, employees calling, do I have a case, is there an issue?
Teresa: And a lot of times they hadn’t really ask the employer to do the right thing or giving them an opportunity to do the right thing. By your example, going back in and saying, hey, uh, I’m feeling a little resentment or a little hostility towards my having asked this. And actually that’s protected as well.
Teresa: So, you are protected from harassment, discrimination, and retaliation based on a protected classification, such as a physical or mental disability or medical condition. So that is something you’d need to bring to the attention of the employer and giving them an opportunity to fix, ah, to resolve within the workplace, before going outside the workplace for any type of a resolution.
Lupe: Yeah, I think it happens a lot. Um, like your coworkers, they kind of turn on you. It’s something that you could kind of feel, you know, you feel the vibe changing, so yeah.
Teresa: There is this mentality that, or you know, I guess, we all revert back to, you know, primary school, at various points in our lives when we’re trying to form a line, when we’re driving in traffic. Somebody gets in front of me. There’s that feeling that, well, you’re getting special treatment. Why are you getting special three minutes?
Teresa: And it does bring out a little bit of that. Hmm. I don’t know that I’m comfortable with that. I don’t like that. Or maybe they don’t like that person to begin with. And that just fuels the fire.
Teresa: Um, the workplace is rife with all kinds of difficult situations. From an employer perspective, the best you can do with to try to manage those situations and not to, um, you know, to be mindful of those things. If you have friction between employees then best thing you could do would be to downplay the fact that this is being provided.
Teresa: Letting people who, who need to know, are the ones who know. And everyone else can just sort of, you know, half the time it’s unobservant. If you’re taking, for example, an additional 10 minute break during the day or you’re having to stand up, uh, or you need an accommodation where you can, uh, not have to lift something and you have to ask a coworker worker to help.
New Speaker: So, a lot of times those type of things are really kind of go a little unnoticed in the workplace. And I think as the person, you know, as the employer, you need to manage that. And as the employee, you kind of need to manage it too. You need to be a little bit mindful of how you’re taking responsibility for that accommodation.
Teresa: Are you making a big deal out of it when you don’t need to? Are you simply, you know, are you looking for a reason too… sometimes I see instances where people are so worried about being given something that’s going to challenge their restrictions? For example, that they’re looking for, oh no, you’re not, you know, you’re not paying attention. No, that’s going to undo my restrictions. I have an accommodation for that. I can’t do that.
Teresa: So being mindful of that and how those issues are addressed on both sides I think goes a long way towards helping those feelings of possible resentment or retaliation.
Lupe: Right. That’s true. I agree.
Lupe: Yeah. We actually, heavy listener who’s employer accommodated her specifically with chronic fatigue, as we understand an eight hour workday might be challenging from time to time. So if you need a six hour workday, we understand. And we thought that was, you know, above and beyond to accommodate her chronic fatigue. But is that, would that be something unheard of? Now she’s not in California, nor is she in the U.S.
Teresa: Well, you know, kudos for someone who’s not required by law to do it, for doing it. I think that’s great. It’s not unreasonable. So our standard is reasonable. So, if an employee says, look, I want to be at work and I want to do this, but sometimes, some days, eight hours is just too much for me. What about a flexible schedule? That is absolutely reasonable accommodation.
Teresa: In fact, there are, um, so in California, you know, there’s state law, there’s federal law. In California you have codes and statutes that uh, tell you what the law is. So for example, the government code is the section that governs, you know, you will provide an accommodation. You’re not to discriminate, harass, retaliate, all these sorts of things, lays it out in a statutes. But doesn’t really explain it very much. There’s something called the California Code of Regulations, which actually goes on to expand a little bit and give you a little more detail on how to actually comply with the law.
Teresa: And if you look through the regulations, when it comes to accommodations, those types of things are considered to be reasonable. Flexible schedules, if the company allows, you know, working from home or you know, mobile working and that sorts of things. So it actually kind of lays out things that are at a minimum to be determined to be a reasonable accommodation. So yes, a flexible schedule would.
Teresa: Something that they’re not required to do would be to create a new job. So you’ll see this a lot of times where light duty is necessary. And an employer will say, gosh, we just don’t have light duty available. and whatever that might be in a factory situation, it could be, you know, this person’s going to need, uh, an accommodation, a temporary accommodation for a couple of weeks, while they recuperate.
Teresa: Well, you can have, um, you know, we could have him clean up the shop for a couple of weeks and pay him. That’s okay. We need that, it would be a good thing to do. In an office perhaps that looks like helping with the backed up filing or the scanning or whatever it might be that you could do on a temporary basis. But you’re not required to create a new job for this individual as an accommodation.
Teresa: One of the things that, in California, people forget a lot of times that time off to treat the temporary disability is considered to be a reasonable accommodation, if nothing else works.
Teresa: So if you sit down in that interactive process meeting and you really brainstorm it and you’re trying to come up with anything reasonable. And you just cannot find anything reasonable to let this person come back into the workplace, you can say as reasonable accommodation, we’re happy to provide you additional unpaid leave to treat your disability. So even that would be considered reasonable.
Brian: So time off, acceptable. Building a nap room with a recliner, unacceptable.
Teresa: That’s a good way to put it. Yes. Although I like the nap idea. I think that’s a great idea.
Brian: At first, I’m thinking, you know, blue mat, dim the lights.
Lupe: With a little bell, bring me my water. ding, ding, ding.
Brian: Well, Teresa, is there anything else you would like to leave as parting words to the listeners of Sjogren’s Strong?
Teresa: Yeah, I think, you know, on both sides, I think what really pays is to, um, from an employer perspective, I always talk about making sure that you are taking each and every case on its merits.
Teresa: As employers, people who work in HR and all that, they do the best they can and, and they also sometimes see kind of the worst of it. And it’s very difficult sometimes to set aside what you’ve seen in the past or maybe personal bias or just fatigue and the job and say, oh, here’s another one.
Teresa: But I encourage people to really set that aside and take each case on its own merits and think about how would you want to be treated, which I’m sure most people do. How would you want to be treated if you were in that position?
Teresa: You know, where we live here in southern California, an accident on the freeway, it’s such a common occurrence. We could all find ourselves in a position of needing some kind of temporary disability. And I’d like to believe that somebody would know and understand the value of an employee enough to say, we want you back in the workforce. Let’s work together to get that done. And do their duty as an employer.
Teresa: From an employee perspective, doing what you’re asked is a great way to help the process along. Participate. Don’t be the one who fails to participate. Don’t go in with preconceived ideas that the employer’s not going to do what you ask or they’re not going to compromise with you or they’re going to retaliate, they’re not going to want to do it. Because I really found over my career that there are employers who, who very much value those employees and they honor the intent of the statute, which is to get disabled employees back to work and keep them in the workforce.
Brian: That’s really good to know and good advice for the listeners. And for you, if you want to learn more and hear from Teresa, we’re going to have a link to her podcast, which is Workplace Perspective, in the show notes, you can find it on iTunes and Google Play and we’ll have a link to Sapphirelegal.com in the show notes as well. If you have, you know, legitimate concerns and you think taking it to the next level is appropriate and you live in southern California.
Lupe: She’s going to get calls from everywhere.
Brian: They’re going to be asking you to, you know, pass the bar in New York, here soon.
Teresa: No way. No more bars. California is it for me.
Lupe: Oh my goodness. Well, Teresa, we really appreciate you being on the show and answering questions. Our listeners really appreciate it, as well.
Teresa: Oh, it’s great. No, I want to thank you so much for having me on. I really enjoyed it.
Brian: Thank you so much for your time, Teresa.
Teresa: You’re welcome.
Many of you have asked questions regarding Sjogren’s Syndrome and Disability, so we found Teresa. She was kind enough to share with us, not only her time but years of experience, explaining some of the in’s and out’s.
If you are struggling with work or thinking about options for managing Sjogren’s while working, we hope this episode answered some questions or at the very least illustrated a starting point.
In the spirit of “Sjogren’s Strong”, Living an Active and Healthy Lifestyle, we hope this information helps you realize options do exist and accommodations maybe just a conversation away.
Until next time, Sip Constantly and stay hydrated.Until next time, Sip Constantly and stay hydrated.Until next time, Sip Constantly and stay hydrated.Lupe, “Sjogren’s Strong
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