Karen Marshall - 14/21 - Wilke Fleury LLP : Sacramento, California : Healthcare Law Firm

In 2010, Wilke Fleury raised $2,890 for Teaching Everyone Animals Matter (TEAM) through its “Jeans Friday” program. Jeans Friday is an initiative that allows Wilke Fleury employees to wear jeans on Friday if they contribute $5 toward a charity that has been selected by employee vote. The charity selected for 2010 was TEAM, a non-profit organization that works with Sacramento County Department of Animal Care and Regulation to help provide for the care and treatment of the animals at the Sacramento County Animal Shelter. Dan Baxter, a Wilke Fleury partner, is a member of the Board and Secretary of TEAM. Wilke Fleury is proud to support TEAM’s efforts in our community.

The final regulations for the Genetic Information Nondiscrimination Act of 2008 (‘GINA”) became effective January 10, 2011. Employers must be careful to comply with these regulations, as the consequences of non-compliance may be severe.

Background
The Genetic Information Nondiscrimination Act of 2008 (“GINA”) was signed into law on May 21, 2008. GINA prohibits employers from discriminating on the basis of genetic information in hiring, termination, personnel actions and compensation decisions. Title II of GINA, which applies to private employers who employ 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, became effective on November 21, 2009. The regulations implementing Title II became effective on January 10, 2011. In addition to prohibiting discrimination on the basis of genetic information, employers are barred from requesting, requiring, purchasing or disclosing genetic information, subject to a few limited exceptions. If an employer does acquire any genetic information about its employees, the information must be maintained in a confidential medical record file separate from the employee’s personnel file.

Genetic Information Defined
Genetic information under GINA includes any genetic tests of applicants, employees or family members, an employees’ family medical history, requests for or receipt of genetic services and the genetic information of a fetus being carried by an individual or family member. Genetic information does not include sex or age, nor does it include information on race or ethnicity that does not come from a genetic test.

Compliance
There are six exceptions to the general prohibition on requesting, requiring or purchasing genetic information. These include (1) inadvertent acquisition, (2) employer offered health or genetic services, (3) request for family medical history under family leave laws, (4) commercially and publicly available genetic information, (5) genetic monitoring of the effects of workplace toxins, and (6) law enforcement purposes. In applying these exceptions, employers must comply with specific guidelines pertaining to the management and acquisition of genetic information. The key concepts to keep in mind if an employer obtains any genetic information about an employee is that the information is confidential and must be maintained and treated as such. Genetic information in the possession of the employer must not be disclosed to third parties.

An employer does not violate GINA if it inadvertently requests or acquires genetic information. In order to avoid inadvertently acquiring genetic information when making a lawful request for medical information, an employer should provide an affirmative warning in their request indicating that the provider should not include any genetic information in response to the request. The employer should also avoid making inquiries of the employee in a way that is likely to solicit genetic information. One example of this type of inquiry would be if, in response to an employee’s request to take FMLA leave due to cancer, the employer were to ask “Is there a history of cancer in your family?”

The second exception applies to employer offered health or genetic services. If an employer offers services through which they may acquire genetic information, the employer must obtain a knowing, voluntary and written authorization from the employee which provides a description of the type of genetic information requested and its purpose. Additionally, the authorization must describe the restrictions on further disclosure of the genetic information. Moreover, individually identifiable information may only be provided to the health care professionals involved in providing the services, and not to the employer or others in the workplace.

The third exception to GINA’s prohibition on requesting genetic information pertains to requests for family medical history in order to comply with the certification requirements under the FMLA or other state family leave laws. Such laws permit the use of leave to care for a sick family member and require employees to provide information about the health condition of the family member to support the need for leave.

It is also not a violation of GINA for an employer to obtain genetic information from documents that are commercially and publicly available, via hard copy or on the internet. However, an employer cannot actively search for such information, especially from sources with limited access such as social networking sites or medical databases.

Should an employer need to monitor the effects of workplace toxins, genetic information acquired to monitor those effects will not violate GINA so long as the employer complies with certain requirements. The employee must receive written notice of the monitoring and be informed of his/her individual monitoring results. If the monitoring is required by state or federal law, the employer must have obtained a prior knowing, voluntary and written authorization from the employee and the monitoring must comply with the law.

Finally, if an employer conducts DNA analysis for law enforcement purposes as a forensics laboratory or to identify human remains, the employer is permitted to require genetic information only to the extent needed to detect sample contamination.

Every employer needs to be aware of and comply with the requirements of GINA. The remedies available to an employee whose genetic information has been misused can be substantial and include compensatory and punitive damages, attorney’s fees, injunctive relief, back pay and other equitable remedies.

The following is a synopsis of the notable changes in California and federal employment laws that were enacted or modified in 2010.

California LawSB 1340 – Mandatory Organ Donation Leave
Requires private employers to allow employees to take paid leaves of absence for organ and bone marrow donation. Employees who have exhausted all other sick leave are entitled to take up to 30 days of paid leave for organ donation and up to 5 days of paid leave for bone marrow donation. Additionally, employers must restore an employee returning from organ or bone marrow donation leave to the same or an equivalent position as he or she had prior to taking the leave. An employer may not interfere with an employee who desires to take such leave and cannot later retaliate against an employee for doing so.

AB 569 – Meal Period Exemptions for Certain Unionized Industries
Labor Code section 512 requires employers to provide thirty-minute meal periods to employees working more than five hours per work day, unless waived by mutual consent. AB 569 amends section 512 to exempt employees in construction occupations, commercial drivers, security officers, and employees of electrical and gas corporations or local publicly owned electrical utilities from the meal period requirement. This exemption only applies if: 1) the employee is covered by a valid collective bargaining agreement; and 2) the agreement contains specified terms including meal period provisions.

AB 2364 – Unemployment Benefits for Domestic Violence Victims
California law provides unemployment insurance benefits to eligible employees who are unemployed through no fault of their own. Previously, employees were eligible if they left employment to protect their children from domestic violence abuse. AB 2364 amends those provisions to allow employee unemployment eligibility if they leave to protect their family from domestic violence abuse.

AB 1814 – FEHA Does Not Prohibit Adjustments to Retiree Health Benefits
Generally, California’s Fair Employment and Housing Act (FEHA) prohibits discrimination in the terms, conditions and privileges of employment based on age. AB 1814 creates a narrow exception to this rule, specifying that FEHA does not prohibit employers from providing health care reimbursement plans to retired persons that are altered, reduced or eliminated when the retiree becomes eligible for Medicare benefits. This exception only applies to health benefits offered to “retired persons.” AB 1814 essentially conforms California state law to the federal Age Discrimination in Employment Act and is intended to encourage employers to continue to offer modest “bridge” retiree health benefits to retirees before they become eligible for Medicare. AB 1814 applies to all retiree health benefit plans in effect on or after January 1, 2011.

AB 2774 – OSHA “Serious” Violations
Provides that if the California Occupational Safety and Health Administration (Cal/OSHA) can demonstrate that there is a “realistic possibility” that death or serious physical harm could result from an OSHA violation, then a rebuttable presumption that the violation is “serious” will be established. An employer can rebut this presumption by demonstrating that it took reasonable steps prior to the violation and effective action to eliminate employee exposure once the violation occurred. AB 2774 defines “Serious physical harm” as any injury or illness, specific or cumulative, occurring in the place of, or in connection with, employment that results in inpatient hospitalization, the loss of any part of the body, serious permanent disfigurement, or impairment of any part of the body sufficient to cause it to become permanently and significantly reduced in efficiency.

No Increase in Computer Professional Salary for Exemption Purposes
Labor Code section 515.5 provides that if computer software employees perform certain enumerated duties and their hourly pay is not less than the statutorily specified rate, then those employees are exempt from overtime requirements. The Division of Labor Statistics and Research, the agency responsible for determining if adjustments need to be made to this rate, has determined for the second year in a row that the rates will remain unchanged. The minimum hourly rate will remain at $37.94, the minimum monthly salary will remain at $6,587.50, and the minimum annual salary will remain at $79,050.

Federal Law
The Obama Administration primarily focused on contentious issues such as health care, financial reform, and immigration reform; therefore, there were no significant federal labor and employment legislative developments in 2010.

Robert F. Tyler of the firm’s litigation department recently prevailed in a major complex medical malpractice case brought against one of the firm’s longstanding clients. The case involved a 48 year old man who was brought into the client’s hospital with a severe brain bleed after falling as the result of an apparent loss of consciousness. Various tests done shortly after admission disclosed cardiac abnormalities, which were ultimately felt to have been caused by the injuries resulting from the fall, rather than being the cause of the loss of consciousness and fall itself. Twenty months later, the patient died in his sleep.

At the time of his death, the patient was 50 years old and earning between $150,000 and $350,000 per year. Both before and after his hospital stay, the patient never complained of any significant medical problems and never took any sick leave. On autopsy, it was found that he had suffered a major heart attack at some point in the past, and that all of his cardiac arteries were severely clogged, with the cause of death stated as untreated cardiac problems.

The wife and the two minor daughters of the patient brought a wrongful death claim, contending that the events leading up to the fall were caused by cardiac problems, which they claimed should have been found and worked up by the hospital. The plaintiffs contended that had that taken place, the patient’s severe underlying cardiac disease would have been demonstrated, and steps would have been taken to avert the patient’s untimely death.

The trial itself involved 32 witnesses, with strongly conflicting testimony from experts in cardiology, intensive care, neurology, clinical laboratory operations, and emergency room care. Plaintiffs postulated an earnings loss of $3.9 million, and ultimately requested a total award in excess of $11.7 million. After a six week trial, the jury returned a 9-3 verdict in favor of the defense, finding that the defendant hospital had correctly interpreted the abnormalities shown on the test in question as being due to the injury caused by the fall (rather than causing the fall), and that the hospital’s workup of the patient was correct and complete. While those conclusions were and are medically correct, they were complex and were very vigorously contested by well-credentialed experts on both sides. Therefore, the fact that the jury ultimately came to appreciate the defendant’s position despite their obvious sympathy for the plaintiffs, clearly constituted a very successful result for the client.

Wilke Fleury associate Samson R. Elsbernd recently became a member of the District of Columbia Bar. Mr. Elsbernd was sworn in on December 6, 2010 by a three-judge panel of the District of Columbia Court of Appeals, the highest court in Washington, D.C. Mr. Elsbernd is now eligible to practice before the courts of the District of Columbia, in addition to all California courts and the U.S. Court of Appeals for the Ninth Circuit.

Introduction
The Americans with Disabilities Act of 1990 (ADA) is a civil rights law that was enacted to eliminate discrimination against the disabled. Title III of the ADA pertains to equal access to places of public accommodation, stating: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” The ADA defines “public accommodation” as specifically including the “professional office of a health care provider.” Accordingly, optometry offices are clearly covered by the law. It is important to note that the ADA can implicate not only the owner of the facility or business, but also anyone leasing or operating in the space.

Compliance with the ADA involves, among other things, adherence to a vast array of detailed structural requirements. Unfortunately, some people have seized upon the well-intentioned ADA as a lucrative business opportunity: they scope out businesses for violations – say, a handicapped parking space that is too narrow, or steps with no ramp access – and file a lawsuit. These “career plaintiffs” generally make their money by forcing small businesses – including medical offices – to settle for thousands of dollars, rather than face the expense of a lawsuit. ADA lawsuits are often preceded by a letter informing the business operator of their non-compliance, though plaintiffs are not required to give notice or to allow the facility to cure their violations before filing suit (many who receive these letters dismiss them as bogus or a scam, but they should be taken seriously). Sadly, these predatory tactics force many businesses to shut down if they cannot afford the expense of retrofitting their premises to comply with the ADA.

ADA Requirements
Given the stakes of noncompliance, it is important for every optometrist to become familiar with the ADA. Title III of the ADA outlines three main requirements for places of public accommodation such as an optometrist’s office. First, they must “make reasonable modifications in policies, practices, or procedures” to assure that individuals with disabilities have equal access to services and facilities, unless such modifications would “fundamentally alter” the nature of the optometric service. This requirement is rarely at issue in litigation – most often, a violation of this provision involves a refusal to allow a service animal inside the facility.

Second, optometrists must offer “auxiliary aids and services” to the disabled to ensure they are treated equally and inclusively, unless providing such services would “fundamentally alter” the nature of the service or would create an “undue burden.” Common examples of auxiliary aids and services include providing sign language interpreters, assistive listening headsets, television captioning, telecommunication devices for the deaf (TDD’s), and videotext displays. Optometrists need not provide the auxiliary aid or service requested by the patient, or even the most effective one – they simply must provide an aid or service that allows the patient an equal opportunity to obtain the same results as a non-disabled patient. Optometrists should consult with any disabled patient before his or her visit to determine what is a necessary accommodation.

Third, optometrists must “remove architectural barriers, and communication barriers that are structural in nature,” from facilities constructed before 1993 “where such removal is readily achievable.” (Buildings constructed in 1993 or later must fully comply with the ADA Accessibility Guidelines, or ADAAG.) This requirement is often the most cumbersome because it can involve costly retrofitting projects, such as installing wheelchair ramps, making curb cuts at sidewalks and entrances, and widening doorways. If making these changes is not readily achievable, optometrists must provide alternative measures, such as retrieving merchandise from inaccessible shelves, or relocating activities to an accessible location. Whether a removal of barriers is “readily achievable” is based on a variety of factors, including the cost of the removal and the financial status of the facility involved. However, only a court can ultimately determine whether the removal is readily achievable or not – and by that point, any defendant will have spent large sums on legal fees.

Finally, some ADA requirements are specific to professional offices of health care providers. Most notably, any building with two stories or more must have an elevator (other places of public accommodation need only have an elevator if the building is three stories or more). Optometrists should also be aware that making significant alterations or renovations to a facility may trigger additional responsibilities, as outlined in the ADAAG. Although compliance with all of these requirements may be expensive, the government offers some relief in the form of tax incentives to offset costs.

Recommendations
For existing facilities – especially those built before 1992 – it is important to assess whether the building is ADA compliant. If possible, it’s a good idea to hire an ADA compliance consultant, such as a Certified Access Specialist (CASp), or an attorney familiar with ADA requirements to perform an audit of the facility. Another option might be to consult with disability rights organizations to help identify any problematic structural barriers. When undertaking any improvements, it is best to prioritize tasks from the perimeter inwards – i.e., ensure access to the facility from sidewalks, parking structures, and public transit stops first, then access into the building itself, and finally internal facilities such as public restrooms, phones, and drinking fountains. This approach will help minimize the premises’ vulnerability to “drive-by” career plaintiffs. Finally, be sure to document any access improvement plans for use in any actual or threatened litigation in the future.

When constructing new facilities (or making significant renovations to existing ones), be sure to select an architect who has expertise in ADA compliance. The ADAAG also offers detailed information on all of the ADA structural requirements, as well as technical standards specific to medical care facilities.

Finally, since compliance with the ADA is an ongoing obligation, it is essential to establish procedures for ongoing compliance assessments. Being proactive in this regard is both a good business practice and a benefit to the disabled community and the community at large.

ADA Resources

ADA Accessibility Guidelines for Buildings and Facilities (ADAAG): Available at http://www.access-board.gov/adaag/
ADA Guide for Small Businesses (published by the Department of Justice, or DOJ): Available at http://www.ada.gov/smbusgd.pdf
ADA Standards for Accessible Design (published by the DOJ): Available at http://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf
List of Certified Access Specialists (CASp’s), provided by the Division of State Architect: Available at https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx
ADA Best Practices Tool Kit for State and Local Governments (published by the DOJ): Available at http://www.ada.gov/pcatoolkit/toolkitmain.htm
ADA Title III Highlights (published by the DOJ): Available at http://www.ada.gov/t3hilght.htm
The DOJ’s ADA Information Line: (800) 514-0301 (voice); (800) 514-0383 (TDD)

Wilke Fleury is pleased to announce that Sarah Scott and Stacy Hunter have joined the firm as associates. Ms. Scott and Ms. Hunter are both 2010 graduates of the University of California Davis School of Law (King Hall), and join Wilke Fleury following successful clerkships with the firm during the summer of 2009. While at King Hall, Ms. Scott served on the Law Students Association (the student governing body), worked as a faculty research assistant and teaching assistant for first-year law students, volunteered at the Employment Law Clinic of Sacramento’s Voluntary Legal Services Program, participated in the Prison Law Clinic, and interned for Prisoner Legal Services in the San Francisco jails. Ms. Scott also acted as the student liaison for the Sacramento County Bar Association, Civil Rights and Constitutional Law Section. Among her law school accomplishments, Ms. Hunter served as Associate Articles Editor for the U.C. Davis Law Review and copy editor for the Journal of Juvenile Law and Policy. She was also a member of the Jewish Law Students Association, and interned for the California Building Industry Association. We are excited to welcome Sarah and Stacy aboard!

On Friday, October 22, a federal jury in Sacramento returned a punitive damages award of over $10,000,000 in a case brought by Wilke Fleury on behalf of plaintiffs Brian Dawe, Gary Harkins, and Flat Iron Mountain Associates. That award was in addition to the same jury’s October 18 award of $2.58 million in compensatory damages.

Represented by Wilke Fleury partner Dan Baxter, the plaintiffs sued the California Correctional Peace Officers’ Association, Corrections USA, and two individual defendants for breach of contract and defamation—among other claims—stemming from a campaign of misconduct perpetrated by the defendants in 2006 and 2007. After a three-month trial, the jury found in favor of Dawe, Harkins, and Flat Iron on their claims, as well as on an assortment of counterclaims made by Corrections USA. Of the total damages awarded to plaintiffs, over $12 million was against CCPOA, the largest correctional officers’ union in the country and a powerful force in California politics.

Continuing its long tradition of community involvement and support, Wilke Fleury is sponsoring the Down Syndrome Information Alliance’s 6th Annual fundraising walk, the 2010 Step Up for Down Syndrome, at William Land Park on Sunday, October 17. The DSIA is a local non-profit organization that promotes Down Syndrome awareness and inclusivity, and offers support and community to people with Down Syndrome and their families. Wilke Fleury partner Trevor Stapleton, along with associate attorneys Latika Sharma and Natalie Johnson, will be participating in the event as well as staffing the Wilke Fleury informational booth. Please be sure to stop by and meet our attorneys and enter the drawing for a festive Fall gift basket.

For more information on the event, click here.

The midterm elections have changed the political landscape in Washington, with Republicans winning control of the House of Representatives and picking up seats in the Senate. Even so, it is still too early to know exactly how this will affect the array of open tax issues for 2010 and 2011.

Of particular importance, Congress must decide whether to extend any of the Bush-era tax rules that will otherwise expire at the end of 2010. Without Congressional action, individuals will face higher tax rates on their income, including capital gains. Consequently, it may be beneficial to conclude any sales in 2010 to benefit from the lower capital gains rates.

Also, unless Congress changes the rules, the estate tax will return next year with an exemption level of only one million dollars and a 55% top estate tax rate. As such, estates that were under the estate tax exemption level of $3.5 million over the last several years may now be taxable, and estate tax planning steps may therefore be advisable.

In short, year-end planning—which always involves some educated guesswork—is a bigger challenge this year than in past years.

If you have questions about year end tax planning, contact us as soon as possible so that if action is advisable, there will be time to complete the steps before 2011.

A primary planning tool for a person with a disability is a carefully drafted trust that prevents the assets of the trust from disqualifying the person from receiving public benefits.

1. Is a Trust Necessary?
A trust can be a beneficial planning tool to preserve assets for the benefit of a person with a disability. If an individual’s only public benefits are entitlement programs such as Social Security Disability Insurance and Medicare, a trust may not be necessary. If, however, a person with a disability is receiving need-based benefits such as SSI or Medi-Cal or may reasonably be expected to need such programs in the future, a trust is the primary means to preserve the public benefits and allow for additional assets to be held and used for the individual’s future needs. Otherwise, the individual may become ineligible for public benefits until the additional assets are spent or given away (which would also cause a period of ineligibility). Other than placing assets in a trust, the other alternative is to purchase assets that are not counted for purposes of need-based benefit requirements. However, this does not provide additional funds to supplement public benefits. In addition, if funds are needed and the exempt assets are sold, the proceeds could again trigger benefit ineligibility until spent.

2. Trusts For People With Disabilities.
Trusts for people with disabilities fall into two basic categories: (1) first party trusts; and (2) third party trusts. Although within each category there are variations, the basic structure is that assets are transferred into trust for the benefit of a beneficiary with a disability. A third party serves as trustee and the beneficiary has no control over disbursements from the trust. The distinction between a first party trust and a third party trust is where the assets to fund the trust originate.

A. The first party trust is a trust that allows a person with a disability to transfer his or her own assets into the trust without being penalized under need-based public benefit programs. The most prominent feature of this type of trust is the requirement that the State be reimbursed from the trust’s remaining assets on the beneficiary’s death. The State must “receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan.” The reimbursement requirement applies only to Medi-Cal benefits paid, not to SSI benefits.

B. A third party trust is established with the assets of someone other than the person with a disability. Unlike the first party trust, there is no reimbursement requirement. The third party trust also has the advantages of allowing the person setting up the trust (the “settlor”) a great deal of flexibility in structuring the trust including:

Providing for distributions to or for the benefit of multiple beneficiaries, including beneficiaries without disabilities;
Establishing an advisory committee to oversee and make recommendations regarding the care of the beneficiary with a disability;
The ability to use trust funds to hire caregivers, case managers, advocates and attorneys for the beneficiary with a disability; and
Controlling the final distribution of any assets remaining after the death of the beneficiary with a disability.

The key to a third party trust is ensuring that the trust assets are not includible as assets or income of the beneficiary. A carefully drafted third party trust can allow a parent or relative to provide for the lifetime care and advocacy of a person with a disability without causing him or her to lose public benefits.

3. What kinds of benefits can be provided by a third party trust for a beneficiary with a disability?
The trustee is generally directed to make expenditures to maintain the beneficiary’s good health, safety, and welfare when these are not being provided by any public agency. This commonly includes basic living needs such as dental care, medical care, custodial care, support services, and similar care not provided by public benefit programs. In addition, distributions are also commonly authorized for goods and services such as:

Clothing, bedding, and furniture;
Telephone, Internet, and cable or satellite television;
Audio, video and computer equipment;
Newer or more effective medications than allowed by Medi-Cal;
More sophisticated medical or dental or diagnostic work or treatment for which funds are not otherwise available;
“Nonessential” medical procedures (such as massage therapy or acupuncture);
Periodic outings and vacations; and
Any other items to enhance the beneficiary’s quality of life, self-esteem, or situation. If set up correctly, a trust can provide additional comfort and care to enhance the quality of life of a person with a disability, without causing a loss of public benefits.

If you would like further information about a trust for a person with a disability, please contact us at (916) 441-2430.

1. What is a conservatorship?
A conservatorship is a court proceeding through which a responsible person (called a conservator) is appointed by the court to care for another adult who cannot care for him/herself or his/her finances (called a conservatee).

2. What is a Limited Conservatorship?
A “Limited Conservatorship” is a special type of conservatorship intended specifically for a person with a “developmental disability.” The goal is to encourage the limited conservatee’s maximum self-reliance and independence. As such, the limited conservator is generally only granted those powers that are necessary to aid the limited conservatee in those areas in which the limited conservatee needs assistance.

3. Who determines if a person has a “developmental disability”?
Generally, the Regional Center will determine if a person is developmentally disabled. If the person is a client of the Regional Center, then he or she automatically qualifies. Otherwise, the Regional Center will assess the individual to determine if he or she has a developmental disability.

4. What kinds of powers can a limited conservator be granted?
People with developmental disabilities can usually do many things on their own. As such, the limited conservator is only granted powers to do things the limited conservatee cannot do without help. The powers that the limited conservator may be granted are generally limited to the powers to:

Fix the residence or specific dwelling of the limited conservatee;

 Access confidential records and papers of the limited conservatee;

 Consent or withhold consent to the marriage of, or the entrance into a registered domestic partnership by, the limited conservatee;

 Contract on behalf of the limited conservatee;

 Give or withhold medical consent on behalf of the limited conservatee;

 Control social and sexual contacts and relationships of the limited conservatee; and

 Make decisions concerning the education of the limited conservatee.

However, because the court will only grant those powers that are necessary to aid the limited conservatee, not all these powers are granted in every case. For example, it is uncommon for the court to grant the limited conservator the power to control relationships of the limited conservatee unless the limited conservatee has shown that he or she makes poor choices that put him or her in danger, such as being in abusive relationships.

5. Who can be appointed as limited conservator?
Although any responsible adult can act as a limited conservator, limited conservators are usually parents or siblings of the person with the disability. It is also possible to appoint more than one person as limited conservator at the same time. In fact, it is a good idea to have at least one parent and a sibling or other relative act as co-limited conservators. That way, if one co-limited conservator dies or becomes incapacitated, there is still a limited conservator in place. Otherwise, a new limited conservator would have to be appointed through court proceedings.

6. Can I avoid court proceedings by naming a limited conservator for my child in my Will or living trust ?
No. Only the court can appoint a limited conservator.

7. What if I decide not to establish a limited conservatorship?
In most cases, adults with development disabilities are not able to give informed consent for medical treatment or to sign contracts. As such, if a limited conservatorship is not established, the director of the Regional Center has the authority to make most of the decisions for the adult with development disabilities. including decisions regarding residence, medical care, and contracting for services.

8. When should I apply for limited conservatorship?
If you are trying to establish a limited conservatorship for someone who will soon be 18, it is a good idea to start the process more than 3 months before his or her 18th birthday. A limited conservatorship is a court proceeding and it takes time to gather reports and hold court hearings before the limited conservator is actually appointed.

9. If I am a limited conservator, do I also need a conservatorship of the estate?
Generally, you do not need a conservatorship of the estate if the limited conservatee gets only public assistance, like Supplemental Security Income (SSI) or Social Security (SSA) but has no other assets. But, you will need a conservatorship of the estate if the limited conservatee has other assets, like an inheritance or a settlement from a lawsuit that is not in a trust for a person with a disability.

10. Does the court supervise the limited conservator?
Yes. Generally, a court investigator will review the case one year after the conservatorship is granted, then every 2 years after that. The review will include discussion with the limited conservator and a visit with the limited conservatee. If a conservatorship of the estate is established, the conservator will be required to file an annual report with the court to show how the money in the conservatorship is being managed and spent.

If you would like further information about limited conservatorships, please contact us at (916) 441-2430.

Although the Americans with Disabilities Act (ADA) recently celebrated its 20th anniversary, many employers still have difficulty understanding the scope of the ADA’s requirement to provide reasonable accommodations for employees with disabilities. A recent decision by the Ninth Circuit Court of Appeals highlights the importance of communication between the employer and employee when determining the appropriate reasonable accommodation for a disabled employee, as well as the continuing nature of the employer’s obligation.

An Example of Ineffective Accommodation: EEOC v. UPS Supply Chains Solutions

Facts
In 2001, UPS hired Maricio Centeno as a junior clerk in the accounts payable division. Centeno was born deaf, his native language was American Sign Language (ASL) and he could only read and write English at the fourth or fifth grade level. Centeno was able to complete his job responsibilities without the assistance of an ASL interpreter, but required reasonable accommodations to fully enjoy certain benefits and privileges of his position.

UPS held mandatory weekly and monthly accounts payable meetings, but due to his disability, Centeno was unable to understand what was being said during these meetings. In 2002, Centeno requested an ASL interpreter at the meetings. UPS chose to accommodate Centeno by requiring him to attend the meetings and then providing him with written summaries of the meetings after they were concluded. Centeno was unhappy with this accommodation because he received the information at a later time than the rest of the employees, he was unable to voice his opinions or ideas during the meetings, and he frequently did not understand the summaries. Centeno expressed these concerns to UPS and in 2004, UPS responded by having another employee sit with Centeno and take notes for him during the meetings. This accommodation was also ineffective because Centeno could not understand the notes. In 2005, UPS began providing an ASL interpreter for the monthly meetings but not for the weekly meetings.

UPS had similar difficulties providing Centeno with reasonable accommodation regarding other aspects of his job, including assistance with an Excel training program, understanding a written warning regarding a violation of UPS’s anti-harassment policy and understanding and completing a questionnaire on harassment awareness.

The Court’s Decision
Initially, the lower court held in favor of UPS, finding that the accommodations that UPS provided for Centeno were reasonable. The EEOC then appealed to the Ninth Circuit. The issue before the Ninth Circuit was whether UPS provided Centeno with reasonable accommodations under the ADA that would allow him to enjoy the benefits and privileges of his position, including required meetings, job training, understanding the contents of written warnings and comprehending UPS’s harassment awareness questionnaire. UPS argued that it reasonably accommodated Centeno because its modifications were effective.

The Ninth Circuit explained that a reasonable accommodation must allow an employee with a disability to enjoy the same benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities. The employer is required to engage in an “interactive process” with the employee to determine what accommodation is most appropriate. This interactive process requires “(1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation that is reasonable and effective”. Furthermore, an accommodation is ineffective when it does not fully accommodate a disabled individual’s limitations. The Ninth Circuit determined that a jury should decide whether the accommodations UPS implemented were effective, because the issue was not so clear cut that it could be decided by a court. The court noted that an employer is not required to provide an employee with the exact accommodation that he requests, but continuing to utilize an ineffective accommodation is not reasonable.

Lessons for Employers
1. Employers must not only provide reasonable accommodations to disabled employees to ensure they can perform their essential job responsibilities, but also that they are able to fully enjoy the benefits and privileges of their employment.

2. Employers implementing a reasonable accommodation for a disabled employee must engage in an interactive process with the employee to determine if the accommodation is effective.

3. If the employee complains that the accommodations offered are ineffective after trying them, further discussions regarding other alternatives must take place to determine whether an effective accommodation exists.

California’s Workers’ Compensation Act, the Fair Employment and Housing Act (FEHA), and the federal Americans with Disabilities Act (ADA), all offer distinct procedures and remedies for claims made by disabled employees in the workplace. While many aspects of workers’ compensation claims are handled by the employer’s insurer, FEHA and ADA claims trigger an obligation for the employer to engage in an interactive process with the employee to determine if a reasonable accommodation can be provided that would allow the employee to perform the essential functions of the job. Since many workers’ compensation claims ultimately lead to FEHA or ADA disputes, it is important to understand the subtle distinctions between the various legislative schemes and how they interact. Below are some common questions from employers about how to navigate the potential overlap between workers’ compensation laws, the FEHA and the ADA.

Q: Why are there so many laws covering disability discrimination in the workplace? What are the important differences?

A: Understanding the history of the various laws helps to answer this question. California’s workers’ compensation laws have existed, in one form or another, for almost 100 years. They were designed to strike a bargain between employees who were vulnerable to injury and their employers, who were potentially subject to devastating liability. Under the compromise, employers assumed liability for workplace injury regardless of their fault, and in return, employees gave up their right to sue in court. The ultimate goal of workers’ compensation laws (and one that is particularly important in times of high unemployment) is to return the employee to work. The FEHA and ADA, by contrast, are civil rights laws that were enacted specifically to combat discrimination. (The FEHA predates the ADA and is slightly broader in scope, as discussed below.) As such, each law provides its own remedies, corresponding to the policy behind the legislation.

Historically, workers’ compensation claims were an employee’s exclusive remedy for disability discrimination. Section 132a of the California Labor Code specifically prohibits discrimination against an employee for filing a workers’ compensation claim. In 1998, however, the California Supreme Court ruled that disabled workers may pursue any and all remedies available to them under the law, including those provided for in the FEHA and ADA. This is important because these statutes can offer very broad remedies not available under the workers’ compensation laws, including front pay, unlimited compensatory damages, attorney fees, and, potentially, punitive damages. Of course, employees can’t get “double recovery” under both workers’ compensation and the FEHA or ADA. However, settlement of a workers’ compensation claim does not prevent the employee from bringing a later FEHA claim – so an employer can’t assume it has exhausted its liability just because it settled a workers’ compensation claim.

Q: What employers are covered under the various laws?

A: California’s workers’ compensation laws apply broadly to all employers within the state. The FEHA applies only to entities with at least five employees, and the ADA applies only to entities with at least 15 employees. If you are a small employer, be sure you are clear on who counts as an “employee” – anyone owning a share of the organization or exercising significant control over it may not qualify as an employee for purposes of ADA or FEHA coverage.

Q: What is the definition of a “disability”?

A: This is a surprisingly complicated question. “Disability” has distinct meanings under workers’ compensation laws, the FEHA, and the ADA. Under workers’ compensation, a “disabled” employee is any employee who has suffered a workplace injury that restricts the worker’s ability to perform the job. The FEHA, by contrast, specifically defines disability as an “impairment that limits an individual’s ability to participate in a major life activity,” which California courts construe broadly to include anything that makes achievement of job functions difficult. The ADA defines the term more rigidly as an impairment that “substantially limits” a major life activity. As a result, a condition that constitutes a disability under workers’ compensation may not necessarily qualify as one under the FEHA or the ADA. For example, an employee might be able to file a workers’ compensation claim for even a relatively minor workplace injury (and for any discrimination resulting from it), but unless the injury limited a major life activity, relief under the FEHA or ADA would be unavailable.

Q: What is a “major life activity”?

A: The ADA states that major life activities “include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” However, this list is not meant to be exhaustive and there has been extensive litigation over what qualifies as a major life activity.

Q: What are some examples of reasonable accommodations?

A: California employers have an obligation to provide reasonable accommodation to an employee with a disability, unless the employer can demonstrate that an undue hardship precludes it from doing so. The accommodation must allow the employee to perform the job effectively. Common examples of accommodations include remodeling the workplace to make it accessible to the employee, limiting the employee’s working hours and/or providing more breaks, restructuring the job, providing an extended leave of absence or, if necessary, transferring the employee to another (vacant) position within the organization where the disability will not interfere with the job functions.

Of course, what is “reasonable” and what constitutes an “undue hardship” will vary depending on the employer and the nature and extent of the disability at issue. “Undue hardship” is defined ambiguously as requiring “significant difficulty or expense.” Courts look to an employer’s size, resources, field and structure to determine whether the employer has met its obligations under the FEHA or ADA. Smaller employers may be expected to respond to an employee’s request more quickly, but larger employers will be presumed to have more financial flexibility.

Q: What is required of employers and employees in the interactive process?

A: Once an employer has notice of a disability that may be impacting the employee’s ability to perform the job, the employer has a legal obligation to engage in an informal interactive process with the employee to determine if an accommodation exists that will allow the employee to perform the essential functions of the job. This process generally begins with a simple dialogue between employer and employee, which must be meaningful and in good faith. The employee has an obligation to communicate all relevant medical information, and may not hold out for a preferred accommodation if the employer offers a reasonable alternative. Ultimately, the choice of accommodation is at the employer’s, not the employee’s, discretion.

The biggest pitfall for employers is allowing communication to break down. First-line supervisors may be dismissive of the employee’s initial complaints and fail to escalate the dialogue to Human Resources. Training on this issue is important, as a supervisor’s failure in this regard will be imputed to the employer. However, even Human Resources professionals are not immune to dropping the ball when it comes to the interactive process. An employer’s obligations are onerous and the employer should ensure that it continues its efforts to communicate with the employee until a reasonable accommodation is reached or it is determined that no reasonable accommodation is possible.

It should also be remembered that the interactive process need not be conducted in person. The process can, and often should, start when the employee is out on leave and can be accomplished through phone calls or e-mail. If the employee has retained an attorney, employers may comply with the interactive process by communicating with the attorney rather than with the employee directly. Employers would also be wise to document the entire interactive process –all documentation relating to the employee’s request for accommodation, relevant medical information, work restrictions, discussions regarding accommodation, and all communication with the employee should be retained. Where possible, have the employee acknowledge this documentation in writing.

Q: What are some proactive steps an employer can take to avoid liability relating to future workers’ compensation, FEHA, or ADA claims?

A: Before a disability issue arises, the employer should ensure that each employee is provided with a job description containing the essential job functions. This allows for transparency and minimizes confusion over the critical functions of the job once a disability is at issue.

Training supervisors on how to deal with disabilities in the workplace is also key. Once the employee brings the issue to the supervisor’s attention, the supervisor should determine whether an injury occurred at work and ask what accommodation the employee requires. If the supervisor notices a performance problem that could reasonably be attributed to an employee’s disability but the employee has not yet notified the employer, the supervisor should (delicately) raise the issue with the employee. The employer has an affirmative duty to investigate whether a disabled employee may be reasonably accommodated. Once these preliminary steps have been taken, the supervisor should immediately report the situation to Human Resources so that the appropriate paperwork can be completed and the interactive process can be continued and effectively documented. Supervisors should not be charged with completing the interactive process on their own. Where appropriate, guidance from a legal professional should be obtained.

Finally, do not make the mistake of thinking that complying with your obligations under the workers’ compensation laws is synonymous with complying with your obligations under the FEHA or the ADA. As an employer, it is important to understand that your obligations under each of these of these statutory schemes are different and that satisfying your obligations under one may still leave you subject to significant liability under another.