Public Risk March 2011

Published by the Public Risk Management Association

www.primacentral.org

March 2011

Automotive Event Data Recorders: Public Risk Management Essentials

Religious Accommodation and Discrimination in the Workplace Return-to-Work Program Considerations

PRIMA 2011

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Join us for the next Webinar of 2011: March 23 | 12 p.m. – 1:30 p.m. EST Intricacies of 1983 Civil Rights Claims Presenters: Steven M. Puiszis Hinshaw & Culbertson

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Public entities across the country are facing an ever-increasing number of federal lawsuits claiming a violation of an individual’s civil rights. There are a number of unique liability issues and defenses to Section 1983 Civil Rights claims. This Webinar will help identify those issues so they are not overlooked during the initial investigation or analysis of a civil rights claim. Unlike state law claims, neither municipalities nor supervisory personnel can be held vicariously liable under 1983, and this Webinar will address under what circumstances and theories municipalities, public officials and supervisory personnel can be held liable for a civil rights claim. This Webinar will also provide a basis to evaluate any type of Section 1983 claim that can be brought against a state or local unit of government or its employees.

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Volume 27, No. 3 | March 2011 | www.primacentral.org

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

Interim Executive Director Marshall Davies, Ph.D.

Contents

President Laura Peterson, JD, MPA Director of Risk and Insurance University of Wyoming Laramie, WY Past President Ron Hayes Risk Manager Calcasieu Parish School Board Lake Charles, LA

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6 Automotive Event Data Recorders: Public Risk Management Essentials

President-Elect Cindy B. Mallett, AIC, CWCP, ARM-P Risk Manager City of Gainesville Gainesville, GA Directors Betty Coulter Risk Management Director City of Asheville Asheville, NC Matt Hansen, MPA Director, Risk Management Division City & County of San Francisco San Francisco, CA

By Peter R. Thom and Ryan L. Devine

12 Thou Shalt Not Run Afoul of Title VII: Religious Accommodation & Discrimination in the Workplace

Dan Hurley, CSP, ARM-P, MS Senior Director, Risk Management & Safety Norfolk Public Schools Norfolk, VA Dave Parker, ARM-P Risk Manager Pima County Sheriff’s Department Tucson, AZ Marilyn Rivers, CPCU, ARM, AIC Director of Risk and Safety City of Saratoga Springs Saratoga Springs, NY

By Joseph G. Jarret, Esq.

16 Return-to-Work Program Considerations

By Daniel Mahoney CIH, CSP

Linda Spacek Interim Director, Human Resources City of San Marcos San Marcos, TX Editor Jennifer Ackerman, CAE Senior Manager, Communications 703.253.1267 • jackerman@primacentral.org Advertising Donna Stigler 888.814.0022 • donna@ahi-services.com

16 In Every Issue 4 News Briefs | 19 Advertiser Index | 20 Member Spotlight

Public Risk (ISSN 0891-7183) is published 10 times per year by the Public Risk Management Association, 500 Montgomery Street, #750, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org Opinions and ideas expressed are not necessarily representative of the policies of PRIMA. Subscription rate: $140 per year.

Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine. Periodical postage paid at Alexandria, VA, and additional mailing offices.

POSTMASTER: Send address changes to PRIMA, 500 Montgomery Street, #750, Alexandria, VA 22314.

Copyright 2011 Public Risk Management Association Reprints: Contact the Reprint Outsource at 717.394.7350.

March 2011 | Public Risk

1

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Message from PRIMA President Laura Peterson

Return to Work

I

n this issue of Public Risk, you will find an article full of useful considerations for return-to-work (RTW) programs. I’m sure I don’t need to sell you, my risk management colleagues, on the importance of effective RTW. Even if workers’ compensation does not fall within your risk management purview, you likely deal with other types of RTW—returning employees after non-workrelated injuries because you also find yourself with an HR role; dealing with questions or claims associated with ADA accommodation, FMLA or disability; or even handling the return of one of your own employees who has been injured on the job. Whatever the extent of your experience with RTW, I’m sure you believe, like I do, that a robust RTW program is important because the sooner individuals return to the workforce, statistically the more likely they are to return permanently.

In addition to the wisdom you can find about RTW programs in this issue, I encourage you to think about employee work ethic, employee morale and workplace atmosphere and the impact each has on RTW. In my experience, each of these factors plays a part in the individual and organizational success of RTW. For example, in my risk management career, I’ve seen individuals who were literally blown up, lost limbs and were severely and permanently injured yet they worked through major obstacles to come back to work, though no one would have questioned their seeking an award as permanently and totally disabled. Yet I’ve also seen individuals with only superficial wounds take an extraordinary amount of time off or seek to be determined totally and permanently disabled despite their ability, caught by surveillance, to do such things as pole dance at a night club or ride horses. What is it that makes certain people stop at nothing to return to their jobs while some will do

anything to avoid it? I believe it starts with their learned work ethic. To the extent hiring takes into consideration behavioral attributes, finding those with a good work ethic can lead to positive RTW outcomes later.

Employee morale and workplace atmosphere go handin-hand and both influence our ability to retain workers and return them to their jobs after an injury. As the difficulties of the economy take a toll on our organizations, we see cuts in staff and resources. The remaining employees are being asked to do more and more with less and less. Being off work for a workplace injury may be the first chance a staff member has had to relax and see just how stressful things have become, decreasing their desire to return. As government organizations, we already face the challenges of work functions that are demanding and in some cases undesirable; adding the economic difficulties means we have to work that much harder to make our organizations desirable places to be where the employees feel appreciated and where they want to return after an injury.

Anne Frank said, “Laziness may appear attractive, but work gives satisfaction.” I hope that you will join me in doing what we can to encourage our public entities to be places where work truly does bring satisfaction.

Whatever the extent of your experience with RTW, I’m sure you believe, like I do, that a robust RTW program is important because the sooner individuals return to the workforce, statistically the more likely they are to return permanently.

Sincerely,

Laura Peterson, JD, MPA 2010–2011 PRIMA President Director of Risk and Insurance University of Wyoming

March 2011 | Public Risk

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News Briefs

News

Briefs City Attorney Says Freezing Base Salaries Legal The City of San Diego can legally freeze the base salaries of its workers as a long-term solution that would shave hundreds of millions of dollars off its $2.1 billion pension deficit, according to a legal opinion released by City Attorney Jan Goldsmith.

The San Diego News-Tribune reports that the freeze would lock salaries at their current level, and in essence, cap the size of a worker’s future pension. Employees could still receive additional compensation through incentive pay that would not apply toward pension calculations.

The opinion by Goldsmith comes as city leaders, from Mayor Jerry Sanders to City Councilman Carl DeMaio, have pushed forward separate plans to limit or lower the city’s liability for future pension costs.

Sanders said he hoped the opinion would push the city’s labor unions to work with him on a solution that reduces costs for the city and ends years of expensive litigation for both sides.

“If we can find a way to work with our employee unions to end all the litigation and still have some measurable savings over the next five-to-seven years on pension costs, then I’m willing to explore it with them,” he said. “It’s all subject to negotiations. I think everybody would like some certainty and some finality, even the employees. I think that they’re tired of this also.”

Portland Chief Mike Reese Vows to Search for Ways to Reduce Police Use of Deadly Force Portland Police Chief Mike Reese called the unusual spate of officer-involved shootings “unacceptable” and vowed to have his training division and outside experts research equipment, police tactics and all of last year’s shootings to determine what can be done to limit police use of deadly force, reports the Web site, Oregonlive.com.

“Absolutely, there’s too many,” Reese said. “I consider one too many. We’re going to do everything we can to prevent officers from having to use their firearms. It’s extremely disheartening. We have a very safe city. The types of violent actions we’re seeing are very surprising.”

The chief stood with Mayor Sam Adams, who serves as police commissioner, and answered media questions during a hastily called press conference in city hall as detectives continued to investigate the shootings and prepare them for grand jury review.

There were six officer-involved shootings in 2010. Four of those ended with fatalities. There were two officer-involved shootings in the first two days of the new year. It was the most officer-involved shootings in a short period of time— five people in the past 40 days—since 2005, when there were five in a 50-day period.

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Public Risk | March 2011

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Berkeley Auditor Report Shows $310 Million Benefit Debt The City of Berkeley has an unfunded liability for promised employee benefits of $310 million, which equates to $197,000 for every full-time city employee, according to an eye-opening story by Daniel Borenstein published in the Contra Costa Times.

The piece, which takes as its starting point a November 16 report by Berkeley city auditor Ann-Marie Hogan, claims that the city has spent beyond its means, and will have to make difficult choices on whether to tax residents more highly or make harsh cutbacks, including significant job losses at the city, or both.

Borenstein writes that increases to city benefit costs will force Berkeley to eliminate 63 full-time positions, or 4 percent of the workforce. Hogan tells Berkeleyside that figure is incorrect and will actually be higher as she was only referring to the General Fund, which covers the fire and police departments and administrative staff, not all city employees. “The dollar equivalent of positions which might have to go is higher than 4 percent of the workforce, although I don’t have the exact number of what it will be,” she said.

“The city has been aware for several years of the underfunded liability,” she continues. “We are not alone. All California cities in the Public Employee Retirement system are facing this issue — some are just facing it sooner than others. San Jose, for example, has its own pension fund and made benefit cuts in December.”

Multi-Line Public Entity Package Provided by an A.M. Best “A” Excellent Rated Carrier Congress Mulls Stepping Up Security Lawmakers are already engaged in vigorous debate over their security, with several pushing for dramatic measures and more money and others saying the actions of a single deranged gunman shouldn’t shut them off from the public.

Rep. Jesse Jackson Jr. (D-Ill.) told POLITICO in an e-mail that he plans to propose a reversal of the 5 percent cut Republicans made in members’ office budgets, and he wants a 10 percent increase to cover more security measures in the wake of the January shooting of Rep. Gabrielle Giffords (D-Ariz.).

“There are a lot of desperate people in our society who may be unemployed, uneducated and despondent.

They are susceptible to rumors, innuendo and antigovernment rhetoric that only serves to inflame an already combustible environment,” he wrote.

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March 2011 | Public Risk

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Automotive EDR Essentials for the Public Risk Manager

Automotive Event Data Recorders: Public Risk Management Essentials

By Peter R. Thom and Ryan L. Devine

Is this an article about yet another acronym?

Yes, you do have another set of initials to decipher, but the mysterious EDR could well become a useful tool if you manage a vehicle fleet for your municipality or public entity. EDR is short for “event data recorder,� and in most vehicles it is embedded in the airbag safety system. The National Highway Transportation Safety Administration (NHTSA) estimates 64 percent of model year 2005 vehicles were equipped with EDRs and that figure has grown in recent years.

In the early days of airbag development, embedded data recorders helped automakers gather information to measure airbag safety system performance. As manufacturers refined EDR functionality, other parties, like transportation researchers, regulators, insurance companies and attorneys started to see the modules as sources of real-world accident data. So significant is the potential impact of EDR technology on vehicular accident investigations that, in 2006, the NHTSA issued a rule requiring all automakers that install EDRs to notify buyers if their airbag safety systems contain data recorders and to comply with data collection and reporting standards by model year 2012. While the agency has not made airbag EDRs mandatory, it will consider requiring them if they do not become standard equipment.

Before the 2006 rule, automakers considered their EDRs to be proprietary and very few shared the technology that would download the crash data stored on the modules. That certainly was true of Toyota until early last year, when a flood of unintended acceleration complaints by newer-model Toyota and Lexus owners overwhelmed the manufacturer. Since then, an internal policy change has signaled the automaker’s willingness to facilitate data downloads.

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Public Risk | March 2011

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EDR and Fleet Vehicles When you survey your fleet, the chances are good that almost all the recently manufactured vehicles will have some data-recording capability. The latest cars and trucks are replete with microprocessors, especially in performanceenhancing features like electronic stability control and antilock brakes. However, the most pertinent EDRs to fleets are the ones found in airbag safety systems because they are designed to collect, store and report accident data to a NHTSA-regulated standard. Even if these other modules retain useful information for crash investigators—a distant possibility, at best—the data usually is wiped with each ignition cycle (turning the vehicle on/off), plus the modules remain outside the scope of current federal laws.

Now that you are aware of EDR as a potential resource for accident data, it is crucial to become familiar with its operation. The more you know about EDR and crash data retrieval, the better prepared you will be to work with your insurer and legal representative should the need arise. More importantly, your ability to respond to your constituency as a public risk manager will be enhanced as well.

EDR Basics The mission of an EDR airbag safety system module is simple: passively monitor specific operational readings until a sudden velocity change like a rapid acceleration or deceleration triggers activation. At that point, the EDR will wake up and save the data it has been sampling in the seconds prior to the event. Then it will record the subsequent changes in vehicle speed that describe the behavior of the vehicle during a collision—engineers use the term crash pulse. If the accident results in airbag deployment, the data will be saved indefinitely, but if the crash is less severe, the data may be erased if another sudden deceleration occurs or if the vehicle goes through another 250 ignition cycles. Not every speed burst or sudden braking will signal an accident, but an event of sufficient magnitude to awaken the system will be documented until erased or overwritten.

What are the steps to initiate data retrieval following an accident? As the risk manager for the public entity that owns the affected vehicle, you are probably the appropriate official to authorize a data download by an agent chosen by your insurance carrier, a law enforcement official trained in crash data retrieval (CDR), or other involved parties.

There are issues associated with EDR data ownership that have been addressed by state legislatures, but the laws enacted are typically directed to private ownership rather than to public fleets. There is a remote possibility that you may face questions from union representatives of the driver involved in the accident, if pertinent, but EDR usage is becoming so commonplace and is so far below the level of scrutiny delivered by in-vehicle surveillance, that it rarely triggers an argument.

Even if a vehicle has an EDR, there is no guarantee that the data downloaded from the module following an airbag deployment will be accurate or complete. The technology is still developing, plus current automotive EDRs are not as resilient or reliable as their aviation counterparts, which can withstand concussion, conflagration and submersion. At present, there is no commonality in data collected, sample rate, recording period, communications protocol, or module connectors. Remember standardization is the goal of the NHTSA rule, but even as the new models are compliant, that still leaves 250 million or more vehicles on U.S. roads whose EDRs are unaffected by federal oversight.

EDR Data Sets • vehicle speed • engine speed • brake status • throttle position • seatbelt status • ignition cycles • Delta V’s (velocity changes) • passenger airbag status

Consequently, the data retrieved from an EDR download is best used as an adjunct to a thorough accident investigation and not as standalone testimony. The data may refute or corroborate witness statements, but when the issues in question are gray rather than black and white, it is crucial that the evidence be as indisputable as possible. The analysis and interpretation of the data is best left to skilled automotive engineers who are aware of the technology’s limitations and schooled in broader analytics.

• time from impact to airbag deployment

March 2011 | Public Risk

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Automotive EDR Essentials for the Public Risk Manager

Data extraction from an EDR is not for the hobbyist, as tampering with airbag sensors or attempting to remove the module can imperil airbag operation and related safety systems, nullify warranties and abrogate NHTSA safety standards.

Airbags are explosive devices that are dangerous to untrained personnel who may inadvertently trigger deployment.

DATA RETRIEVAL Essentials A proprietary cable is the means for retrieving data from an EDR module. For now, there is only one commercially available system and it is used primarily for vehicles manufactured by the Big Three U.S. automakers. Access to other automaker modules must be initiated through the manufacturer, although they will have to facilitate CDR access via a commercially available system by 2012.

Data extraction from an EDR is not for the hobbyist, as tampering with airbag sensors or attempting to remove the module can imperil airbag operation and related safety systems, nullify warranties and abrogate NHTSA safety standards. Airbags are explosive devices that are dangerous to untrained personnel who may inadvertently trigger deployment. Automotive engineers understand the different components in these systems and are careful when accessing the EDR to avoid or minimize problems like data loss or evidence spoliation. They will also document both the retrieval process and the chain-of-custody.

The easiest approach to a download is to link to the Standard OBD-II Diagnostic Link Connector (the portal for emissionscontrol data) located under the dashboard with a CDR interface (a proprietary cable). If the vehicle’s electric system or diagnostic connector has been compromised, then the data can be downloaded directly from the airbag module by using a proprietary cable. The last alternative is to remove the airbag restraint module for later extraction under laboratory conditions. Whatever means used, the data retrieved will then be formatted into a series of reports with software that can interpret the data.

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Public Risk | March 2011

Ultimately, it is not realistic to assume EDRs will deliver insights to every crash because not all vehicles have accessible modules and, even if the automobile has one, there are accident circumstances where the data cannot deliver useful insight. For example, the data will not explain the cause of a tire failure if a blowout causes a vehicle to veer off the road before crashing. Then there is the instance of a phantom vehicle where a swerving car causes another one to careen off a roadway—the EDR will not deliver useful data because there was no vehicle contact to fire the airbags. The crash data is most useful in accidents where the airbags deploy and driver behavior is in dispute. These are commonly efforts to determine vehicle speed and seatbelt use when traditional accident reconstruction practices like scene and vehicle inspections and momentum analysis are incomplete or inconclusive.

Legal and Judicial Ramifications Issues associated with consent, data ownership and privacy can cloud EDR usage and overshadow the operational challenges the module faces as its utilization spreads.

Thirteen states responded initially to a media debate about automotive black boxes by enacting protective legislation starting in 2003. While a number of other states have laws pending, the pace to address EDR privacy concerns through legislation has slackened in part because the more common computer trespass laws criminalizing unauthorized access may be applicable to EDR data recovery as well.

More relevant to public entity risk managers is the flipside of the data ownership question: what happens to ownership rights when an insurance company takes salvage title?

Arkansas, North Dakota, New Hampshire, Oregon and Virginia laws state that EDR data ownership does not pass to an insurer due to ownership succession while the remaining ones leave the issue open to debate. The effect of this is broader than simple title transference, especially for insurance companies that have a duty to investigate all

www.primacentral .org

Calendar of Events The Public Risk Management Association (PRIMA) hosts or sponsors a wide variety of educational programs for public risk practitioners. These meetings and events provide an optimum forum for public risk professionals to acquire new knowledge or skills, exchange ideas and expand peer networks.

claims. On one hand, downloading the data from an accident could result in penalties for privacy violation and on the other, failing to download the data could be seen as a failure to defend the interests of an insured—albeit an individual, corporation or public entity. The safest course may well be removing and retaining the EDR module to preserve the evidence in anticipation of future need.

PRIMA’s calendar of events is current at time of publication. For the most up-to-date schedule, visit www.primacentral.org.

Judicial proceedings to date are supportive of EDR evidence. In fact, Frye and Daubert hearings to assess admissibility have been supportive of the module’s crash data in every instance. For criminal proceedings, the information gleaned from a download has been used primarily to prosecute drivers who were driving recklessly before fatal collisions. In contrast, the civil cases primarily concern airbag malfunction or vehicle defects, like an alleged sticking gas pedal. In the few cases where the court has ruled against admitting EDR data, it determined that the recorded event was not relevant to the matters at issue.

Webinars 2011

EDRs’ Future in Accident Investigations Current-generation EDR modules represent a growing trend in automotive design and manufacture to harness the power of microprocessors in order to revolutionize vehicle performance and safety. Beyond perfecting the driving experience, these data-gathering modules are providing useful evidence in accident investigations. At least for now, EDR usage remains scattered, but it will certainly expand and develop as the technology’s access and reporting are standardized across all makes and models.

Peter R. Thom is president of Peter R. Thom and Associates Inc. Ryan L. Devine is a managing engineer at the company.

March 23: FREE for Members!

Intricacies of 1983 Civil Rights Claims April 13: FREE for Members!

A Recipe for Risk Management July 20: FREE for Members!

Managing Volunteer Risks October 19: FREE for Members!

Risk Management Alphabet Soup November 16: FREE for Members!

Winning Strategies for Contractual Risk Transfer

PRIMA Annual Conferences June 5–8, 2011 PRIMA 2011 Annual Conference Portland, OR Portland Convention Center June 3–6, 2012 PRIMA 2012 Annual Conference Nashville, TN Opryland Hotel June 2–5, 2013 PRIMA 2013 Annual Conference Tampa, FL Tampa Convention Center

March 2011 | Public Risk

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PRIMA 2011 Annual Conference

Blazing the Trails of Risk June 5–8 | Portland, OR | Oregon Convention Center In this world of constant change, risk managers cannot simply sit back and go with the status quo.

We must be innovators and trail blazers in order to navigate and adapt to the treacherous terrain of public risk management. PRIMA’s 2011 Annual Conference brings together thought leaders in the public risk management field who will share their experiences and solutions to some of risk management’s toughest problems.

At the 2011 Annual Conference, you will have more than 50 educational sessions in nine tracks from which to choose, including an employee benefits track, school risk management, pooling and risk control.

Through the collaborative learning environment of the PRIMA Annual Conference, you will come away with answers to questions and cost-effective solutions that you can implement into your own programs.

Enjoy the natural beauty of Portland while you soak up the learning and networking opportunities that PRIMA’s 2011 Annual Conference offers!

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Who should attend?

• Public risk managers • Human resource practitioners • Employee benefits administrators

• Health and safety managers • Risk financing and claims managers • Pooling executives

Check out these Annual Conference Highlights!

June 5: Pre-Conference Session Winning Presentations: Getting it Right, Anywhere, Every Time Back by popular demand! PRIMA is once again offering annual conference attendees the opportunity to attend this groundbreaking, dynamic and interactive half-day presentation skills workshop. Presenter Michael Jackson will travel from South Africa to teach workshop registrants exactly how to create and deliver a top-quality business presentation. This is a professional development program guaranteed to improve the level of any attendee’s presentation skills! This workshop comes complete with a full professional manual and guide. Register for this session when you sign up for the conference. Registration fees apply.

New this Year! June 8: FREE Post-Conference Workshop Role of Public Sector Risk Managers in Child Protection The 9-1-1 Call Center Partner Program, recently endorsed by PRIMA, sets forth best practices for handling 9-1-1 calls involving missing and/or sexually exploited children. Every 9-1-1 call center must have in place policies and training to help ensure every missing and sexually exploited child is given the best chance to be found alive and unharmed. Presenter Peter Bellmio, senior policy advisor, Office of the President for the National Center for Missing and Exploited Children (NCMEC) will provide public sector risk managers with a detailed review of the standard, as well as training and technical assistance available at no cost from NCMEC. Register for this session when you sign up for the conference.

Register today!

Early bird rates end March 11th!

Religious Accommodation and Discrimination in the Workplace

Thou Shalt Not Run Afoul of Title VII:

Religious Accommodation and Discrimination in the Workplace

By Joseph G. Jarret, Esq.

The scenario replicates itself in public workplaces across America: an employee seeking an accommodation for a sincerely held religious belief is rebuffed by a supervisor who questions the sincerity of the belief or discounts the request because the belief system at issue is unknown to the supervisor.1 That entity will learn the hard way that claims based upon religious discrimination in the workplace can be protracted and costly.

Religion in the public workplace is among the most contentious and difficult areas for employees and employers to navigate. As a result of our increasingly diverse and religiously pluralistic (used in this context to mean a diversity of belief systems) society, conflict is increasingly becoming the norm and not the exception. According to the United States Equal Employment Opportunity Commission (EEOC), workplace conflict rooted in an employee’s religious beliefs is growing exponentially.2 Therefore, it is incumbent upon the public risk manager to attempt to stop claims based upon religious discrimination before they are filed. Unlike many risks that can be transferred, religious discrimination claims are unique, due in part to the emotions attached to them. As such, the best risk management tool at the risk manager’s disposal is avoidance through the training and educating of their entity’s managers and employees.

The Law Title VII of the Civil Rights Act of l964 (Title VII)3 prohibits employers from discriminating against individuals because of their religion in hiring, firing and other terms and conditions of employment. Title VII also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. Many state constitutions likewise contain anti-discrimination language when it comes to religious expression in the workplace. It is important, therefore, to emphasize the fact that federal, state and local government agencies are not only bound by Title VII but also in many cases bound by state anti-discrimination laws as well. Consequently, a public employer can be sued by employees on the grounds that the employer interfered with their constitutional right to exercise their religious rights and beliefs. As such, the risk manager should take the time to become familiar with both Title VII and any protections provided in the state’s constitution.

Sincerely Held Religious Belief Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.”

Religion includes not only traditional organized religions such as Christianity, Judaism, Islam, Hinduism and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people or that seem illogical or unreasonable to others. Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial

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Title VII of the Civil Rights Act of l964 (Title VII)3 prohibits employers from discriminating against individuals because of their religion in hiring, firing and other terms and conditions of employment. ... Many state constitutions likewise contain anti-discrimination language when it comes to religious expression in the workplace.

It is important, therefore, to emphasize the fact that federal, state and local government agencies are not only bound by Title VII but also in many cases bound by state anti-discrimination laws as well.

concepts of religion.” A belief is “religious” for Title VII purposes if it is “‘religious’ in the person’s own scheme of things,” i.e., it is “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by … God.” An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice or if few—or no—other people adhere to it. In other words, religious practices that include moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views can constitute a sincerely held religious belief. The employee does not have to demonstrate she or he belongs to a recognized faith or sect, but merely that his or her beliefs are sincerely held. Where employers often run afoul of the law is that they question the tenets of the belief system or they unreasonably challenge the employee’s sincerity in the belief system.

The law, however, does place the burden on the employee to demonstrate she or he has been discriminated against by communicating to the employer that he has a sincerely held religious belief that conflicts with an employment requirement and as a result of that belief, was subjected to an adverse employment action, such as demotion, dismissal or reassignment for not complying with the employer’s requirement.

Reasonable Accommodation The most challenging aspects of Title VII compliance involve the balance between “reasonable accommodation” and “undue hardship.” Many federal courts have defined

“reasonable accommodation” to mean modifications or adjustments to a program, work environment or job description that make it easier for a person with a sincerely held religious belief to participate in workplace activities in the same manner as other employees. Such accommodations can include permitting an employee to: • • • •

Take a particular day off each year for a religious holiday.

Refrain from work every week on his or her Sabbath.

Wear religious garb.

Have a place to pray.

An employer must try to arrange to allow the employee to meet these religious obligations. Other examples of possible accommodations may include shift swaps between employees, voluntary assignment substitutions, flexible scheduling (allowing an employee to work on Sundays, Christmas or other national holidays in place of the day he or she needs off), lateral transfers to other positions in the company and use of lunch time in exchange for early departure. An employer could allow an employee who is a Friday-night Sabbath observer to work longer hours on Monday through Thursday to enable the employee to leave early on Friday to be home for the Sabbath. Employers should also seriously consider requests by employees who seek to be excused from training that the employees considers a violation of her or his religious beliefs.

Further, the risk manager must make clear in the entity’s management staff that public employers may not treat employees more or less favorably because of their religion. For instance, employees cannot be required to participate—or refrain from participating—in a religious activity as a condition of employment. Further, employers

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Religious Accommodation & Discrimination in the Workplace

End Notes 1. There exists virtual panoply of cases winding their way through our federal courts as a result of supervisors who assert that the only “true” religions are Protestantism, Catholicism, Judaism and Islam.

2. See, www.eeoc.gov/ stats/religion, further, the EEOC website provides useful, comprehensive information regarding workplace accommodations for sincerely held religious beliefs.

3. Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.

4. Religious Accommodation in the Workplace: Your Rights and Obligations, ADL, 605 Third Ave., New York, NY 10158 5. Id.

must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer. Employers must likewise take steps to prevent religious harassment of their employees and retaliation against employees for asserting their rights under Title VII or their respective state constitution.

Undue Hardship An employer may not simply refuse to accommodate an employee who expresses a sincerely held religious belief. If the employer claims that accommodation is not feasible because it would result in an undue hardship, the employer must demonstrate the effect accommodation would have on the entity; that is, the burden shifts to the employer to demonstrate the undue hardship.4 The EEOC has interpreted this to mean that an employer can show that a requested accommodation causes it an undue hardship if accommodating an employee’s religious practices: • • • • •

Requires anything more than ordinary administrative costs.

Diminishes efficiency in other jobs.

Infringes on other employees’ job rights or benefits.

Impairs workplace safety.

Causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

• Conflicts with another law or regulation.

took an adverse employment action against the employee or permitted the employee to be subjected to ridicule because of their religious beliefs.

Religious discrimination and accommodation can prove to be challenging for any public entity. The risk manager can be an instrumental player in reducing the frequency and severity of employment claims based upon religious discrimination by educating the workforce, by insuring that her entity’s personnel manual specifically addresses religious expression in the workplace and that the manual outlines with specificity the responsibilities of both employee and employer. Further that training for new and established employees alike is regularly conducted as our workforce continues to be ever more multicultural and diverse.

Joseph G. Jarret is the Knox County, Tenn. law director, a federal & state mediator and a former public risk and insurance manager.

For example, an employer probably does not have to train a part-time employee at substantial cost in order to cover for another employee who is unable to work on Saturdays.5

A Word About Retaliation Equally important to accommodating a sincerely held religious belief is the duty of the public entity to protect employees asserting their rights from discrimination at the hands of peers or management. An employer retaliates against an employee if, because the employee engaged in “protected activity” (such as opposing, complaining about or testifying about religious discrimination), the employer

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Public Risk | March 2011

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Spread t h e W o rd a n d W i n !

PRIMA’s Member Get a Member Campaign PRIMA’s Member Get a Member Campaign lets you earn valuable incentives while you spread the word about PRIMA’s great member benefits. Help us recruit other public entities to join the ONLY association devoted to risk management in the public sector and you could receive: • Recruit one new member and receive 30% off your next year’s membership dues.

• Recruit two new members and receive 50% off your next year’s membership dues.

• Recruit three new members and receive complimentary next year’s membership.

• Recruit four or more new members and receive one complimentary registration to PRIMA’s 2011 Annual Conference in Portland, Oregon.

If you recruit four or more members, you also will be entered into a drawing for an all-expenses paid trip to Portland for PRIMA’s 2011 Annual Conference, including transportation and hotel accommodations!

How do you get started?

Visit www.primacentral.org and click on the Membership link under About PRIMA. Find the special Member Get a Member application and distribute to your fellow public entity peers. When they enter your name in the referral box, you get the credit and the discount!

In addition, each new member recruited through this campaign will receive a 10% discount off of their first year’s membership dues!

Don’t Delay! To qualify for the campaign incentives and the Grand Prize, new members must join PRIMA by March 31, 2011!

Help us grow your Association…spread the word and win!

Return-to-Work Program Considerations

Return-to-Work Program Considerations

By Daniel Mahoney CIH, CSP

A transitional duty or return-to-work program is an important feature in controlling workers’ compensation costs. An employer can effectively use a transitional duty program to permit an injured worker, who is still recuperating, to return to gainful employment in a productive manner before resuming full-duty work.

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Public Risk | March 2011

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In order to prepare for the likelihood of returning an injured employee to a job that best accommodates their restrictions, an employer should Benefits of returning the employee to work include: • Encouraging inclusion of the employee in the workforce.

• Reducing extended periods of idle time spent at home.

• Offering activity levels that strengthen and enhance the employee’s physical recovery.

• Reduction in the number of lost time days.

• Reducing the indemnity payments made under workers’ compensation.

• Increasing the employee’s total earning capacity.

These physical, mental and financial motivators should be designed so that an employee is more willing to return to work, and is capable of performing meaningful tasks that result in greater financial rewards for working.

A transitional-duty program should be temporary in duration and transitional so that a worker “passes through” the program thereby opening positions for other injured workers.

Evaluating All the Possibilities Evaluating potential transitional duty jobs to assist an injured employee coming back to work is a challenging task, but it can play an important role in the success of a return-to-work program. A thorough review of all of the possibilities is important in uncovering the real potential for formulating productive jobs for employees to assimilate them back into the workforce.

Supervisors usually have a list of tasks and activities that they would like to get done but never seem to have the time to accomplish. By reviewing the supervisor’s list of needs, some meaningful modified-duty jobs may be identified.

Being able to assemble these unattended tasks into a job will benefit the supervisor, and enable the employee returning to work to feel that their contributions are valuable, and not just “busy work” assignments. Additionally, evaluate what tasks and services are currently subcontracted out to identify

classify a number of

opportunities to reduce outsourcing expenses while still getting the job done in-house.

jobs as “temporary

Responsibilities

modified-duty”

In order to prepare for the likelihood of returning an injured employee to a job that best accommodates their restrictions, an employer should classify a number of jobs as “temporary modified-duty” positions. If an employee has been out for an extended period of time, the public entity can contact the employee’s health care provider and suggest various light-duty jobs the employee might be able to perform safely.

positions.

For musculoskeletal disorder claims, such as backs, wrists or shoulders, an ergonomist or other qualified person should analyze the physical procedures used in the performance of each job, including lifting requirements, postures, hand grips and frequency of motion. The ergonomist should develop a list of jobs with the lowest ergonomic risk. For such jobs, the ergonomic risk should be described. This information will assist health care providers in recommending assignments to light- or restricted-duty jobs. The light-duty job should therefore not increase ergonomic stress on the same muscle-tendon group.

Department managers should identify essential transitionalduty job functions/positions within their respective departments. Multiple transitional-duty functions can be combined to create a temporary transitional-duty position. This can be achieved through the effective assistance of a vocational expert or occupational physical therapist. Once such job functions or transitional-duty positions are identified, an accurate job description can be drafted and/or videotaped.

Next, the transitional-duty job descriptions are distributed to the designated physicians that appear on the risk manager’s posted list for treatment of work injuries. These physicians, through the use of videotapes or medical provider tours, can be made familiar with the available transitional-duty functions/positions within all of the employer’s departments.

March 2011 | Public Risk

17

Return-to-Work Program Considerations

Prior to the employee returning to work, an evaluation of the work environment of the temporary position should be performed to ensure that the conditions support whatever restrictions the employee may have.

Timing and Duration of the Transition It is recommended that the transitional-duty program be limited to 90 days or less in which a medically disabled/ impaired individual may participate. Within the first 90 days, written confirmation of the injured employee’s ability to perform a transitional-duty position should be obtained from the physician who is already familiar with the employer’s transitional-duty program. A written job offer of transitional duties is then made to the injured worker with a return-to-work date given.

Prior to the employee returning to work, an evaluation of the work environment of the temporary position should be performed to ensure that the conditions support whatever restrictions the employee may have. The employer should allow an extended time period, such as three months, to allow employees to ease back into their normal job requirements, during which time a monthly safety follow-up should be conducted. If it is determined that the employee cannot perform their previous job tasks anymore, the public entity should work with the employee to find another job within the company if possible.

Through close coordination between the medical provider, the entity makes a determination whether to offer an injured worker transitional duty based on the type of injury sustained, i.e., soft tissue injuries. It is recommended that the transitional-duty positions be offered to those employees who sustain disabling injuries from which they would likely medically

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Public Risk | March 2011

recover within 90 days. Because the program by definition is transitional and temporary, the employees who fall within the protected class of Americans with Disabilities Act would not seek participation.

The transitional-duty program should continue for the maximum of 90 days or whenever the employee is medically released to return to regular duty, whichever is earlier. Presumably the entity’s panel physician or other physician of the employer’s choosing would evaluate the individual working in a transitional-duty program shortly before the end of 90 days to update and define any medical restrictions.

When an injured worker refuses to return to transitional-duty work, consideration can be given to re-evaluating the claim for continuation of compensation benefits. Individual state workers’ compensation laws may restrict employer options and should be consulted prior to changing compensation decisions.

However, should the injured worker return to transitional-duty work that is offered to him, the employer may continue to pay compensation. Successful denial of compensation claims depends on accurate and timely communication between the employer, claims adjuster, and any involved medical professionals.

Daniel Mahoney CIH, CSP, is vice president of risk control for Glatfelter Public Practice.

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Has your entity launched a successful program? An innovative solution to a common problem? A money-saving idea that kept a program underbudget? Each month, Public Risk features articles from practitioners like you. Share your successes with your colleagues by writing for Public Risk magazine! For more information, or to submit an article, contact Jennifer Ackerman at jackerman@primacentral.org or 703.253.1267.

Go Online and Get Out of the Classroom!

If you are agent/broker, business executive, risk manager, or an operational risk staff member, the in-depth knowledge you receive with an ARM designation will greatly benefit you and your entity. The Associate in Risk Management (ARM) designation requires completion of the 3-part ARM series: ARM 54–Risk Assessment; ARM 55–Risk Control; and ARM 56–Risk Financing.

Prepare for these exams with the Public Risk Management Association's online tutorials—proven beneficial tools in the studying process. Upon purchase, you have 365 days of studying time. The tutorials fit your individual schedule, whether you are at work, at home, or on travel; they are available 24/7.

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March 2011 | Public Risk

19

Member Spotlight

California Schools Insurance Pool Creates Convenient Regulation and Compliance Schedule Each month, Public Risk features a member who has gone above and beyond in a feature column titled “Member Spotlight.” Do you know someone who deserves recognition, has made a contribution or excelled in their profession?

If so, we’d like to hear from you for this exciting column, as PRIMA shines the spotlight on its members.

To be considered for the Member Spotlight column, contact Jennifer Ackerman at jackerman@primacentral.org or 703.253.1267.

20

A

fter meeting with a new chief school business official, Martin Brady, executive director of the Schools Insurance Authority (SIA) in Sacramento, Calif., realized that he had a problem. New school administrators, particularly chief business officials or maintenance directors, who came from a non-school background, were not familiar with the variety of regulations for California schools.

In order to combat this issue, and make life a little easier for everyone involved in the maintenance of schools, Brady along with staff at SIA, created a convenient Compliance and Regulation Schedule.

This small, easy-to-read guide provides administrators with a handy reference for the safety and maintenance requirements for school districts. This spiral-bound table gives a brief description of what is required, who is responsible and necessary training and documentation.

“Since the intent of this tool is to be brief, regulation references and contact information for responsible agencies are also included for further information,” said Brady. “District staff can refer to the schedule when arranging trainings, planning budgets and allocating resources.”

Public Risk | March 2011

The SIA Compliance and Regulation Schedule has been a very popular tool with SIA’s member entities, especially since many public sector agencies are experiencing a reduction in staff and budget. “Employees are working harder and taking on more responsibilities,” he said.

“When time is limited, this tool can provide a summary of safety regulations so school staff can move forward with planning and action. Communication between departments and staff can improve because all groups are starting with the same information and can work together toward compliance.”

Although the information provided in the compliance schedule was designed for use by all schools and most public entities in California, the purpose and format of the table can be applied to any public agency in the country.

“We wanted our product to be recognizable for all staff and a quick reference,” said Brady. “Regulations are dry and our schedule makes them a little friendlier.”

For more information on SIA’s Compliance and Regulation Schedule, contact Martin Brady at mbrady@sia-jps.org.

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