The Hartford Insurance Group, Inc. · NYSE:HIG
The Hartford Insurance — The Hartford — Conference Presentation (July 2014)
57 slides from The Hartford Insurance's conference presentation, July 2014
Slide 1: California's New PDL and Disability Discrimination Regulations
California’s New PDL and Disability Discrimination Regulations Welcome! We will get started shortly.
Slide 2: Disclaimer
Disclaimer Information conveyed in this presentation should not be construed as legal advice. Information provided in this presentation is for educational purposes only. No part of this presentation may be reproduced, published or posted without the permission of The Hartford and Jackson Lewis, LLP.
Slide 3: Today's Presenters
Today’s Presenters Presenter Jamerson “Jamie” Allen Attorney at Law Jackson Lewis LLP [email protected] www.jacksonlewis.com Facilitator Leah Stoddard Education & Sponsorships The Hartford [email protected] www.TheHartford.com
Slide 4: Session Basics – Phone Lines
Session Basics – Phone Lines Participant phone lines have been muted
Slide 5: Session basics – asking questions
Session basics – asking questions
Slide 6: Jamerson C. Allen | San Francisco
Jamerson C. Allen | San Francisco 1
Slide 7: New Pregnancy Disability Regulations effective December 30, 2012
New Pregnancy Disability Regulations effective December 30, 2012 2
Slide 8: New Notice Requirements
New Notice Requirements o Notice A – Employers Not Subject to FEHA (less than 50 employees) o Notice B – Employers Covered by FEHA 3
Slide 9: Significant Changes to PDL Requirements
Significant Changes to PDL Requirements o Benefit Continuation – PDL plus FMLA/CFRA • Potential Defenses – ERISA preemption; inconsistent with CFRA o Calculation of four months of leave • Old Rule: 88 work days for full-time employees • New Rule: Days or hours worked in 17-1/3 weeks; 693 hours for e
Slide 10: Providing Reasonable Accommodation to Employees with Pregnancy Disability
Providing Reasonable Accommodation to Employees with Pregnancy Disability o Any change in work environment or way job is done o Effective in permitting employee to perform essential functions 5
Slide 11: Examples include
Examples include: o Modifying work practices or policies o Modifying work duties o Modifying work schedules (earlier or later hours, more frequent breaks) o Providing furniture or acquiring/modifying equipment or devices o Lactation accommodation as set forth in Labor Code Section 1030 et seq. 6
Slide 12: Expanded List of Pregnancy-Related Medical Conditions Permitting Leave
Expanded List of Pregnancy-Related Medical Conditions Permitting Leave o Lactation-related conditions (Mastitis) o Gestational diabetes o Pregnancy-induced hypertension o Preeclampsia o Post-partum depression o Loss or end of pregnancy o Recovery from loss or end of pregnancy 7
Slide 13: New FEHA Disability Regulations Effective December 30, 2012
NEW FEHA DISABILITY REGULATIONS Effective December 30, 2012 8
Slide 14: Special Education Disability Now Protected
Special Education Disability Now Protected o Requires or has required special education or related services o May include a specific learning disability o Doesn’t include English as a second language 9
Slide 15: Employers Cannot Discriminate Based On Genetic Information
Employers Cannot Discriminate Based On Genetic Information o Genetic information: 1. Derived from individual or family member’s genetic tests; 2. Receipt of genetic services; 3. Participate in genetic research; or 4. Manifestation of disease or disorder in individual’s family member 10
Slide 16: Disabilities Do Not Include
Disabilities Do Not Include o Statutorily excluded conditions o Conditions that are mild, which do not limit a major life activity 11
Slide 17: Examples of Conditions Not Generally Considered Disabilities
Examples of Conditions Not Generally Considered Disabilities o Common cold o Flu o Minor cuts, sprains, muscle aches, bruises and abrasions o Non-migraine headaches o Minor, non-chronic gastrointestinal disorders 12
Slide 18: Expanded List of Prohibited Pre-Employment Inquiries
Expanded List of Prohibited Pre-Employment Inquiries: o Has applicant had certain specified medical conditions? o Has applicant ever received worker’s compensation benefits? o Has applicant taken medical leave or been hospitalized? o What prescription medications is applicant taking? Note: Pre-emplo
Slide 19: Post-Offer Medical Examinations
Post-Offer Medical Examinations o All non-medical aspects of job application process must be completed. o Examination to determine fitness for job in question o All entering employees subject to examination o Disqualified applicant or employee permitted to submit independent medical opinions before
Slide 20: Unlawful Qualification Standards and Selection Criteria
Qualified standards, tests or other selection criteria that screen out or tend to screen out the disabled are unlawful. o Standards cannot be based on uncorrected vision or uncorrected hearing unless job related and consistent with business necessity o Physical agility or strength tests must be job-
Slide 21: Refined Definition of Essential Job Functions
Refined Definition of Essential Job Functions o Reason position exists o Limited number of employees can perform o Highly specialized requiring expertise or ability to perform 16
Slide 22: Interactive Process Requirements
Interactive Process Requirements o Good faith communication with individual o Communication with representative permissible “when necessary” o Explores: • Need for reasonable accommodation • How person can be reasonably accommodated 17
Slide 23: Evidence of Whether Function Is Essential
Evidence of Whether Function Is Essential o Employer’s judgment o Job description (current) o Amount of time spent performing o Consequences of incumbents not performing o CBA position descriptions o Work experience of past incumbents o Work experience of employees performing similar jobs o Referenc
Slide 24: Refined Definition of Whether Condition Limits a Major Activity
Refined Definition of Whether Condition “Limits” a Major Activity o Old Definition: • Makes achievement difficult o New Definition: • Provides further guidance on what “difficult” means – Individualized assessment – What most people in general population can perform with little or no difficulty – Pe
Slide 25: Expanded Examples of Mitigating Measures
Expanded Examples of Mitigating Measures o Medications, medical supplies, equipment, appliances, low-vision devices, prosthetics, hearing aids, mobility devices, oxygen therapy, assistive animals 20
Slide 26: Expanded Examples of Reasonable Accommodation
Expanded Examples of Reasonable Accommodation o Reasonable accommodations are: • Modifications or adjustments that are: – Effective in providing equal opportunity – Effective in enabling performance of essential functions – Effective in providing equal benefits and privileges 21
Slide 27: Expanded Examples of Reasonable Accommodations
Expanded Examples of Reasonable Accommodations o Making facilities accessible o Assistive animals o Assistive aids and services o Job restructuring • Redistribution of non-essential functions o Part-time or modified work schedules o Altering when/how function is performed o Modification of examinati
Slide 28: Expanded Examples of Reasonable Accommodations (continued)
Expanded Examples of Reasonable Accommodations (continued) o Providing additional training o Permitting an employee to work from home o Leave (paid or unpaid) o Reassignment to vacant position o Other similar accommodations 23
Slide 29: Miniature pig as guide or signal animal?
A miniature pig can be a guide animal for a visually impaired person? _____ Agree _____ Disagree A miniature pig can be a signal animal for a hearing impaired person? _____ Agree _____ Disagree 24
Slide 30: What Are Assistive Animals?
What Are Assistive Animals? o Guide dogs o Signal dog or animal o Service dog or animal o Support dog or animal 25
Slide 31: Minimum Standards for Assistive Animals?
Minimum Standards for Assistive Animals? o Free from offensive odors o Displays habits appropriate to work environment o Behavior does not endanger health or safety o Trained to provide assistance for employee’s disability 26
Slide 32: Certification of Need for Assistive Animal
Certification of Need for Assistive Animal: o Employer may require letter from health care provider stating: • Employee has a disability • Why presence of assistive animal is required in workplace • Animal meets applicable standards 27
Slide 33: Affirmative Duty to Provide Reasonable Accommodation
Affirmative Duty to Provide Reasonable Accommodation o Known disability o Unless undue hardship o Oops: • No requirement that accommodation be necessary to perform essential job functions or medically necessary 28
Slide 34: Other Defenses
Other Defenses o Health or safety of individual o Health or safety of others • “Imminent and substantial degree of risk” 29
Slide 35: Reasonable Accommodation Does Not Include
Reasonable Accommodation Does Not Include o Eliminating essential job functions 30
Slide 36: Reasonable Accommodation: Leaves of Absence
Reasonable Accommodation: Leaves of Absence o In addition to FMLA/CFRA/PDL/employer’s policy • “likely to be effective in allowing employee to return to work at end of leave” 31
Slide 37: Employer request for medical information after CFRA exhausted
Once an employee exhausts CFRA due to the employee’s own serious health condition, an employer can request medical information to determine if further leave is a reasonable accommodation. _____ Agree _____ Disagree 32
Slide 38: Reasonable medical documentation in interactive process
As part of the interactive process, the employer can request reasonable medical documentation. But what constitutes reasonable medical documentation is extremely limited: o A description of physical or mental limitations that affect a major life activity. 33
Slide 39: Disclosure of the nature of the disability is not required
Disclosure of the nature of the disability is not required. 34
Slide 40: Requesting reasonable medical documentation
Where existence of a disability or need for accommodation is not obvious, employer may request reasonable medical documentation that sets forth: o Health care provider’s name and credentials o Confirmation employee has a physical or mental condition that limits a major life activity o Description of
Slide 41: Medical Information Pertaining to Intermittent Leave
Medical Information Pertaining to Intermittent Leave: o Planned Medical Treatments – Establish medical necessity of leave and estimate of dates and duration of treatments o Unforeseeable – Establish medical necessity of leave and estimation of frequency and duration 36
Slide 42: Medical Information for Accommodations Lasting More Than One Year
Medical Information Pertaining to Reasonable Accommodations Lasting More Than One Year: o Employer may request medical documentation of continued need for reasonable accommodation on a yearly basis. 37
Slide 43: Insufficient medical information
If medical information provided is insufficient, employer must explain why and give individual time to provide supplemental information in a timely manner from the health care provider. 38
Slide 44: Independent examination
If medical information remains insufficient, employer can require independent examination: o At employer’s expense o Scope must be job-related and consistent with business necessity o Functional limitations that require accommodation 39
Slide 45: Case Study
Case Study Sally tells her supervisor that she and her husband have been trying to have a baby. Her supervisor has not responded to these comments. Six weeks later, the supervisor sees Sally sitting with her hand on her stomach. Sally works in a laboratory setting, where she may be exposed to variou
Slide 46: Case Study
Case Study For the past three mornings, Sally has excused herself from meetings to rush to the bathroom and has been ill. When this happens on the fourth morning in a row, you follow Sally to the bathroom to make sure she is okay. Sally confesses that she is pregnant and is battling morning sickness
Slide 47: Case Study
Case Study Sally was transferred from her position because the laboratory’s chemical smells made her ill. She is now in month 5 of her pregnancy and is no longer affected by the chemical smells. Sally asks to be returned to her regular duties. Does the employer have to return Sally to her regular du
Slide 48: Case Study
Case Study Sally is 7½ months pregnant. She has stated that she would like to continue working for another month before she goes out on disability leave. In the past week, you have noticed that she seems more sluggish than usual. You think Sally should begin her leave now, as her productivity has de
Slide 49: Case Study
Case Study Sally becomes disabled because of her pregnancy at the beginning of month 8 and requests immediate leave. She is temporarily disabled for 4 full months. She continues to be disabled for an additional month. The supervisor wants to terminate Sally because her ongoing absence is a hardship.
Slide 50: Case Study
Case Study Sally is released to return to work after five months of disability. She then asks to take her CFRA bonding leave. The employer provides employees with paid group health insurance benefits under its FMLA policy and has already provided Sally with 4 months of group benefits while she was o
Slide 51: Case Study
Case Study Joan is a part-time employee who regularly works 25 hours per week (0.625 FTE). Joan provides medical certification requesting intermittent leave because of a pregnancy-related condition. How many hours of leave is Joan entitled to take under the pregnancy disability leave law? 46
Slide 52: Case Study
Case Study Jim has difficulty hearing sounds at certain low frequencies. However, he can hear normal conversations and sounds at higher frequencies. Jim has hearing aids that allow him to hear the lower frequency sounds, but he does not like to wear them. Does Jim have an impairment that limits a ma
Slide 53: Case Study
Case Study Bob has an anxiety disorder. As part of his treatment, Bob’s doctor recommended that Bob get an animal companion. Bob gets a Yorkshire terrier. Bob provides his supervisor with a certification stating that his Yorkshire terrier is an assistive animal and begins bringing his dog to work. I
Slide 54: Case Study
Case Study After Bob is terminated by his prior employer for bringing his dog to work, he interviews with your company. He brings his dog to the interview. When the interviewer asks “what’s with the dog?” Bob states that he suffers from an anxiety disorder and depression and identifies the dog as an
Slide 55: Case Study
Case Study Bob sues his prior employer, alleging disability discrimination and failure to provide reasonable accommodation because he was not allowed to bring his dog to work. The employer responds to the lawsuit by claiming that Bob was terminated because he repeatedly used profanity when talking w
Slide 56: Contact and subscription information
Jamerson C. Allen, 415.796.5441 [email protected] • Join Jackson Lewis’ e-subscription list to receive legal alerts, newsletters, and event invitations - click here • Check out our California Workplace Law Blog by clicking here 51
Slide 57: Thank You!
Thank You! al we do is | Workplace law. In four time zones and 52 majorlocationscoasttocoast. = jackson lewis Positive Solutions for the Workplace*® \_ jackson\lewis oe J