June 2013 - Issue 16

There’s an app for that risk

Annual Meeting of the Board of Directors

Impact of the FMLA and the CFRA on Small Public Agencies

EEOC Files Class Genetic Information Discrimination Suit Against Corning Rehab Center

EEOC Guidance Gives Examples of Reasonable Accommodations

Don’t bounce yourself into a claim! Study reveals dozens of kids are treated daily in the U.S. emergency rooms

News: Worthy

There's an app for that risk

There’s an app for that risk

18th Annual California JPIA Risk Management Educational Forum

There's an app for that! It might be running, tracking sports scores, or reading books, but practically every leisure and work activity shows up in the form of an app these days. So, it should be no surprise that the California JPIA has chosen “There’s an app for that risk” for its 2013 Risk Management Educational Forum theme.

“There’s an app for that risk” isn’t just some clever play on words, though. The idea behind this theme is, that the Authority is positioned to work with each member in the application of best risk management principles in all areas of their business. What better place to strengthen your business and risk expertise than at this year’s educational forum.

So, join us in Indian Wells starting Tuesday, October 8th and continuing through Friday, October 11th. Our program will focus on education first and foremost, delivering important presentations on leadership, liabilities, claim trends, managing exposures, and workplace issues. Each topic will be geared toward specific audiences, including elected officials, executives, managers, and practitioners.

The Educational Forum is not all-work and no-play, however. Our program includes varied opportunities for recreation, networking, and relaxation. These include optional Tuesday golf, a Wednesday welcome dinner, and a Thursday reception. And to continue the Authority’s Friday tradition, the Forum will conclude with a game-styled test of knowledge, featuring some of the speakers as a panel of experts.

Registration is free to California JPIA members. Non-member registration fee is $350.00

Visit http://www.cjpia.org/risk-management/educational-forum/ for more information and to register.



Jon Shull

News: Worthy

Annual Meeting of the Board of Directors

by Jonathan R. Shull, Chief Executive Officer

The Annual Meeting of the Board of Directors will be held on Wednesday, July 17, 2013 at 7:00 p.m. 

Those attending will have the opportunity meet the Executive Committee, Authority staff, and network with the members of the California JPIA. The business meeting will present information about the Authority's objectives, vision, and accomplishments over the past year, including recognition of the winners of the 2013 risk management awards.

In addition, voting delegates will elect four Executive Committee members. Also, the Board of Directors will elect one member from the Executive Committee to serve as President for a two-year term. If the election of President results in a vacancy in the position of Vice President, an election at the same meeting will be in order to fill the vacancy from the remaining Executive Committee members for the remainder of the Vice President’s term.

The meeting will be held at the Authority’s La Palma campus at 8081 Moody Street. A buffet dinner will be available al fresco at 5:30 p.m. with the Board of Directors meeting immediately following. Voting delegates and up to one additional member representative traveling in excess of 100 miles are eligible to receive lodging and travel reimbursement for attending the meeting. A $100 stipend will be provided to the voting delegate or alternate of each member agency attending the meeting.

Voting delegates, alternates, and guest may register online here on or before July 8, 2013. For questions or assistance please contact Jennifer Fullerton at (562) 467-8774. Click here for a meeting notice that provides additional information along with a map. 

I hope you will be able to join us.


Legal Matters

Impact of the FMLA and the CFRA on Small Public Agencies

by Kelly Trainer, Partner, Burke, Williams & Sorensen, LLP

Guidance provided on the Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”) frequently refers to the fact that the FMLA/CFRA only applies to employers who employ more than 50 employees. While this is true for private employers,[1] it is not true for public agency employers. The law is clear that “[p]ublic agencies are covered employers without regard to the number of employees employed.”[2] 

Employee Eligibility Determination
In determining whether a specific employee is eligible for leave under the FMLA/CFRA, the employee must demonstrate that he/she:
− Has been employed for at least 12 months;
− Has been employed for at least 1,250 hours of service during the 12 months immediately proceeding the commencement of the leave; and
− Is employed at a worksite where the employer employs at least 50 employees within a 75 miles of that worksite.[3]

Consequently, as a practical matter, the requirements for employee eligibility means that there is a 50-employee test for a public agency employer. 

Public agencies should keep in mind the definition of “employee” when calculating whether it employs more than 50 employees within a 75 mile radius. The FMLA includes all employees, as defined by the Fair Labor Standards Act (“FLSA”),[4] who are “maintained on the payroll” in making this determination.[5] The FLSA definition of employee includes any “individual employed by a State, political subdivision of a State, or an interstate governmental agency.”[6]

The CFRA provides that the calculation includes all “part or full time employees within 75 miles.”[7] Further, while the CFRA regulations do not include a definition of “employee,” there is a general definition of “employee” in the FEHA chapter that contains the CFRA regulations. That FEHA definition is “any individual under the direction and control of an employer under any appointment of contract of hire or apprenticeship, express or implied, oral or written.”[8]

The determination of whether the agency employs at least 50 employees within a 75-mile radius is made at the time of the request, and can be made multiple times. By way of example, assume a public agency that regularly employs 40 full- and part-time employees typically hires another 30 employees during the summer months for recreation programming. An employee that requests FMLA/CFRA leave in February for his/her own serious health condition would not be eligible for leave because the agency does not employ 50 employees within a 75-mile radius. However, if that same employee renews his/her request in July, he/she would be eligible (assuming the other criteria are met) because the agency now employees 70 employees. “Once the employee meets this eligibility criterion and takes a leave for a qualifying event, the employer may not cut short the leave or deny any subsequent leave taken for the same qualifying event during the employee's 12-month leave period, even if the number of employees within the relevant 75-mile radius falls below 50. In such cases, however, the employee would not be eligible for any subsequent leave requested for a different qualifying event.”[9]

As such, it is crucial that small public agencies consider every request for FMLA/CFRA at the time the request is made and not just assume that the employee is ineligible. If an agency is not sure about whether an individual is an “employee” for purposes of making this calculation, the agency is encouraged to contact its legal counsel and/or its Regional Risk Manager for further assistance.

Employer Notice Requirements
While employees may not be eligible for FMLA/CFRA, all public agencies, regardless of size, are required to post all FMLA/CFRA notices. The FMLA requires all covered employers “to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act's provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division.”[10] The CFRA requires that covered employers notify employees of their CFRA rights by posting a notice “in a conspicuous place or places where employees tend to congregate.”[11] The CFRA also requires that employers include CFRA information in an employee handbook that describes other leaves of absence, if such a handbook is provided by the employer.[12]

Responding to a Request for Leave
If a small public agency employer has an employee request FMLA and/or CFRA leave, it is advisable to respond in a manner consistent with the FMLA’s “eligibility notice,” and advise the employee in writing that he/she is not eligible for FMLA and/or CFRA leave because he/she does not work at a worksite where the agency employs at least 50 employees within a 75-mile radius. This response should be provided within five business days of the request, absent extenuating circumstances.[13]

Other Considerations
Many public agencies, regardless of size, have extended the FMLA/CFRA benefits to its employees through policy. If the agency has done so, the agency must continue following its own policy. If the agency has represented employees, it will be required to adhere to all notice and meet and confer obligations with labor unions before removing or altering these benefits.

Small public agencies should also remember that they are subject to California’s Pregnancy Disability Leave Law. An employee who is affected or disabled by pregnancy may be entitled to a leave of absence of up to four months, and there are no eligibility requirements for such an employee.[14]

Small public agencies should also be sensitive to the fact that while they might not be legally required to provide FMLA/CFRA leave to an employee, the employee may be entitled to a leave of absence, paid or unpaid, as a reasonable accommodation for a disability in accordance with the Americans with Disabilities Act (“ADA”) and/or the California Fair Employment and Housing Act (“FEHA”). The fact that the FMLA/CFRA does not apply to an agency would not alleviate their obligations under other laws or policies.

The FMLA/CFRA are complicated laws, particularly since the 2008 amendments to the FMLA, which made the FMLA and the CFRA more inconsistent. Agencies are strongly encouraged to consult with their legal counsel and/or with their Regional Risk Manager for guidance on these issues.

[1] See 29 CFR § 825.104(a); 2 CCR § 7297.0(d).
[2] 29 CFR § 825.104(a), 29 CFR § 825.108(d). California law is also clear on this point: “It also includes the state of California, counties, and any other political or civil subdivision of the state and cities, regardless of the number of employees.” 2 CCR § 7297.0(d).
[3] See 29 CFRA § 825.110(a); see also 2 CCR § 7297.0(e). Note that the CFRA is identical to the FMLA in this regard except that the CFRA requires that the employee be employed “more than” 12 months, rather than “at least” 12 months.
[4] 29 USCS § 2611(3).
[5] 29 CFR § 825.111(c).
[6] 29 USCS § 203(e)(2). There are exceptions to this definition set forth in the statute, including, but not limited to, elected officials (if they are not subject to the civil service laws of the employing agency) and volunteers (if (a) they receive no compensation or are only paid expenses, reasonable benefits or a nominal fee; and (b) the services provided are not the same as the individual is employed by the agency to perform).
[7] 2 CCR § 7297.0(e)(3).
[8] 2 CCR § 7286.5(b). There are express exclusions in the CFRA regulations for independent contractors under Labor Code section 3353; persons employed by his/her parents, spouse, or child; persons employed under special license in a non-profit sheltered workshop or rehabilitation facility; employment agencies; and persons employed by a temporary service agency.
[9] 2 CCR § 7297.0(e)(3)(A).
[10] 29 CFR § 825.300(a)(1).
[11] 2 CCR § 7297.9(a). A sample notice is available in 2 CCR § 7297.9(c).
[12] Ibid.
[
13] 29 CFR § 825.300(b)(1). The CFRA permits employers to respond within ten days of the employee’s request (2 CCR § 7297.4(a)(6)), but as the FMLA is more protective, employers should adhere to those requirements. 2 CCR § 7297.10.
[14] 2 CCR § 7291.4.


Legal Matters

EEOC Files Class Genetic Information Discrimination Suit Against Corning Rehab Center

Reprinted from the U.S. Equal Employment Opportunity Commission, May 16, 2013

Founders Pavilion Violated Federal Law by Asking for Genetic Information From Applicants and Employees, Federal Agency Charges

The Founders Pavilion, Inc., a Corning, N.Y., nursing and rehabilitation center, violated federal law by asking for genetic information during the hiring process, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. The EEOC also alleged that Founders violated the Americans with Disabilities Act and Title VII of the Civil Rights Act.

According to the EEOC's suit, Founders conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information.

Such alleged conduct violates the Genetic Information Nondiscrimination Act (GINA), passed by Congress in 2008 and enforced by the EEOC. GINA prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process. The EEOC filed suit (Case No. 6:13-cv-06250) in U.S. District Court for the Western District of New York in Rochester after first attempting to reach a pre-litigation settlement through its conciliation process. The Founders suit is the second ever GINA lawsuit filed by the EEOC, following a complaint and consent decree filed in Tulsa, Okla., last week against Fabricut, Inc.

The EEOC further charged that Founders fired one employee after it refused to accommodate her during her probationary period, in violation of the Americans with Disabilities Act (ADA). Further, the lawsuit also charged that Founders fired two women because of perceived disabilities under the ADA, and either refused to hire or fired three women because they were pregnant, in violation of Title VII of the Civil Rights Act of 1964.

"GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law," said Elizabeth Grossman, the regional attorney in the EEOC's New York District Office. "Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women."

Kevin Berry, the EEOC's district director in New York, added, "Congress's intent is clear: employers cannot obtain genetic information from applicants or employees."

One of the six national priorities identified by the EEOC's Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.



Legal Matters

EEOC Guidance Gives Examples of Reasonable Accommodations


Reprinted from the Society for Human Resource Management, May 20, 2013
by Allen Smith

Four informal guidances released by the Equal Employment Opportunity Commission (EEOC) on May 15, 2013, highlight specific types of reasonable accommodations for people with cancer, diabetes, epilepsy and intellectual disabilities. 

“Nearly 34 million Americans have been diagnosed with cancer, diabetes or epilepsy, and more than 2 million have an intellectual disability,” said EEOC Chairwoman Jacqueline Berrien. “Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA [Americans with Disabilities Act], the EEOC often is asked questions about how the ADA applies to these conditions.”

Cancer

More than 12 million Americans had cancer in 2008, the most recent year for which incidence data is available.

The EEOC provided examples of accommodations that organizations could make for people with cancer, such as:

• Leave for doctors’ appointments and/or to seek or recuperate from treatment.
• Periodic breaks or a private area to rest or to take medication.
• Modified work schedule or shift change.
• Permission to work at home.
• Modification of office temperature.
• Permission to use work telephone to call doctors if the employer’s usual practice is to prohibit personal calls.
• Reallocation or redistribution of marginal tasks to another employee.
• Reassignment to a vacant position if the employee can no longer perform her job. 

Diabetes

Approximately 18.8 million Americans get diabetes and nearly 2 million more are diagnosed each year.

In its questions and answers on people with diabetes, the EEOC listed the following examples of reasonable accommodations that employers could make:

• A private area to test blood-sugar levels or to administer insulin injections.
• A place to rest until blood-sugar levels return to normal.
• Breaks to eat or drink, take medication or test blood-sugar levels.
• Leave for treatment, recuperation or training on managing diabetes.
• Modified work schedule or shift change.
• Use of a stool for someone who has difficulty standing a long time because of diabetes-related nerve damage (i.e., neuropathy).
• Reallocation of marginal tasks to another employee.
• Reassignment to a vacant position if the diabetic no longer can perform his duties. 

Epilepsy

Almost 3 million people in the United States live with epilepsy, and each year brings about another 200,000 new cases of seizure disorders. One in 10 adults has seizures during her lifetime. There isn’t a cure yet, but drugs prevent seizures in many epileptics who take them regularly. Seizures can be controlled for substantial periods in 50 percent of epileptics, the EEOC noted.

Suggested accommodations include:

• Breaks to take medication.
• Leave to seek or recuperate from treatment or adjust to medication.
• A private area to rest after a seizure.
• A rubber mat or carpet to cushion a fall.
• Adjustments to a work schedule.
• A consistent start time or schedule change.
• A checklist to help remember tasks.
• Permission to bring a service animal to work.
• Someone to drive to meetings and other work-related events.
• Permission to work at home.
• Reassignment to a vacant position if the employee no longer can perform his job.

Intellectual Disabilities

Individuals with intellectual disabilities (formerly referred to as the mentally retarded) have an intelligence quotient below 70 to 75, the agency noted.

Suggested accommodations for the mentally disabled include:

• Reallocation of marginal tasks to another employee.
• Tweaked training on how to do the job, such as instructions at a slow pace, additional time to finish training, descriptions of job tasks in sequential steps, and the use of charts, pictures or colors.
• Extra training when necessary.
• A tape recorder to record directions as a reminder of steps in a task.
• Detailed schedules for completing tasks.
• A job coach, who can help the employee learn how to do the job; provide intensive monitoring, training, assessment and support; and help develop a healthy working relationship between management and the employee by encouraging appropriate social interaction.
• Modified work schedule or a shift change.
• Help in understanding job evaluations or disciplinary proceedings.
• Acquired or modified equipment.
• Reconfigured placement of workstation from a large open area to a quieter part of the office.
• Reassignment to a vacant position if the worker no longer can perform his or her duties.

The EEOC also noted that since Congress enacted the ADA Amendments Act of 2008, which took effect in 2009, individuals with a wide range of impairments—including cancer, diabetes, epilepsy and intellectual disabilities—have been presumed to have an ADA disability. So, courts now more frequently reach the question of whether persons with disabilities have been reasonably accommodated.


Inflatable Bounce House

Risk Solutions

Don’t bounce yourself into a claim! Study reveals dozens of kids are treated daily in the U.S. emergency rooms

by Joe Eynon, Risk Manager

Inflatable bounce houses are rapidly becoming a necessity at events targeted for children. The fun from these increasingly popular devices for children's entertainment comes along with a risk of injuries.

Dr. Gary Smith from Nationwide Children's Hospital launched the first study to find out how many inflatable bouncer-related injuries occurred in the United States.
Smith and his team analyzed records from the National Electronic Injury Surveillance System, which is operated by the Consumer Product Safety Commission. NEISS collects patient information for every emergency visit involving an injury associated with consumer products.

In the study, published in the December 1, 2012 issue of the journal Pediatrics, Dr. Smith estimated that almost 65,000 children were injured in inflatable bouncers from 1990 to 2010. According to its data, the number of inflatable bouncer-related injuries rose 1,500% between 1995 and 2010. In 2010 alone, 31 children were treated in emergency departments each day on average, according to the report. More than half of the injured children were in the 6- to 12-year-old age group; more than a third were under the age of 5. Arm and leg injuries were the most common injuries. The youngest children, those under 5, were more likely to have fractures, and teenagers were more likely to sustain sprains and strains.

This epidemic increase highlights the urgency of addressing the prevention of inflatable bouncer-related injuries among children. 

Smith says the pattern of injuries from inflatable bounce houses is similar to injuries sustained from trampoline use. Some vendors display their safety rules on their websites or at their facilities. But even though guidelines are posted, that does not mean they are actually followed. Until more formal recommendations are in place, Smith believes a lot that has been learned about trampoline use can be applied to inflatable bouncers. He has the following advice:

• Based on developmental abilities, do not let children under the age of 6 play in these inflatable devices.
• Having one child play at a time is the safest, but that is not very realistic (or much fun), so only have children of similar age and size play inside these bouncers at one time.
• Horseplay, flips and somersaults should be prohibited; that kind of play leads to the most dangerous injuries.
• Always have an adult present when these devices are in use -- but not inside with the children. Adults (parents and/or bounce center operators) should be in a position to observe and intervene if children are engaging in horseplay or doing flips and somersaults.

The Child Injury Prevention Alliance also offers safety tips for inflatable bouncers on its website.

The Authority recommends member agencies evaluate the use of inflatable bounce houses and ensure they transfer the risk to third-parties utilizing agency facilities. 
If you have questions about inflatable bounce houses, contact your designated Risk Manager.