ADJ16681782 · February 20, 2024

Defendant failed to prove that its personnel actions were lawful, nondiscriminatory, and in good faith due to unclear rules and procedural errors, so the good faith personnel action defense does not bar the claim.

From the decision · page 6Therefore, defendant has not met its burden that its personnel actions were implemented in a manner that was lawful, nondiscriminatory and in good faith. The rules regarding the duration of the accommodation, the consideration of remote work, and evidence as to why some accommodations were granted are unclear and show that management personnel may not have followed proper procedures. (See City of Fresno v. Workers Compensation Appeals Bd. (Romero), supra, 65 Cal.Comp.Cases at p. 1052.)

Defendant failed to show that the need for accommodation duration was properly communicated to applicant.

Favours Applicant prevailed

This failure contributed to the finding that defendant's personnel actions were not in good faith.

From the decision · page 5Disability manager Gonzalez testified that the problem with applicant's note from Dr. Ashida is that it did not have a duration on it, which was required as part of the accommodation. (MOH/SOE, p. 6.) However, Dr. Ashida stated in his report of October 27, 2021 that applicant had an adverse reaction to a previous hepatitis vaccine and that she could have a reaction to the Covid-19 vaccine. (Ex. 6, p. 2.) The duration of applicant's requested accommodation would presumably be the length of time that the Covid-19 vaccine was required by defendant; however, defendant has not shown that the need for a duration was appropriately communicated to applicant. (MOH/SOE, p. 7.)

Applicant submitted incomplete accommodation request lacking duration information despite repeated requests from defendant.

Favours Applicant prevailed

The incomplete request and lack of clear communication led to denial of accommodation and supported the finding against good faith personnel action defense.

From the decision · page 5Disability manager Gonzalez testified that the problem with applicant's note from Dr. Ashida is that it did not have a duration on it, which was required as part of the accommodation. (MOH/SOE, p. 6.) However, Dr. Ashida stated in his report of October 27, 2021 that applicant had an adverse reaction to a previous hepatitis vaccine and that she could have a reaction to the Covid-19 vaccine. (Ex. 6, p. 2.) The duration of applicant's requested accommodation would presumably be the length of time that the Covid-19 vaccine was required by defendant; however, defendant has not shown that the need for a duration was appropriately communicated to applicant. (MOH/SOE, p. 7.)

Defendant did not explore the possibility of remote work as a reasonable accommodation despite evidence it was possible.

Favours Applicant prevailed

This omission showed procedural deficiencies in defendant's handling of the accommodation request, undermining good faith defense.

From the decision · page 5Further, the evidence indicates that applicant filled out a reasonable accommodation form requesting remote work, such as maintaining and updating student records and vaccines and referrals, Spanish translations for special education individual education plans over zoom, translating documents for parents, and providing telephone and follow up support for the Student and Family Wellness hotline and the LAUSD pass portal. (Ex. 4, p. 6.) Defendant indicated in a notation from labor relations dated September 9, 2021, that while rare, it would consider remote work for some positions as part of reasonable accommodations. (Ex. 4, p. 11.) Defendant's notes stated that it would engage with employees in the interactive process and would consider multiple factors, such as the availability and feasibility of remote work, in determining if it could offer remote work as a reasonable accommodation. (Ex. 4, pp.14, 16.) While Gonzalez testified that remote work was possible if applicant had submitted compliant documents (MOH/SOE, p. 7), defendant has not shown that it explored the possibility of applicant working remotely.

Defendant's rules on accommodation duration and consideration of remote work were unclear and management personnel may not have followed proper procedures.

Favours Applicant prevailed

These procedural issues supported the conclusion that personnel actions were not lawful, nondiscriminatory, and in good faith.

From the decision · page 6Therefore, defendant has not met its burden that its personnel actions were implemented in a manner that was lawful, nondiscriminatory and in good faith. The rules regarding the duration of the accommodation, the consideration of remote work, and evidence as to why some accommodations were granted are unclear and show that management personnel may not have followed proper procedures. (See City of Fresno v. Workers Compensation Appeals Bd. (Romero), supra, 65 Cal.Comp.Cases at p. 1052.)

Applicant's psychiatric injury was predominantly caused by work-related events including personnel actions and forced retirement, with some contribution from prior depressive episodes.

The opinion supports the existence of a compensable psychiatric injury related to work events, relevant to the good faith personnel action defense analysis.

From the decision · page 3Dr. Howard Greils, panel qualified medical evaluator in psychiatry, stated in his January 31, 2023 report that applicant's psychiatric injury was due to work-related factors. (Ex. 1, Dr. Greils PQME report, dated 1/31/23, pp. 37, 40.) He found that 75% of the cause of applicant's psychiatric injury was due to the work-related events that could be considered in the realm of personnel action: 25% was due to stress from the repeated denials she received in her efforts to be

Provided medical report on vaccine reaction and accommodation request; opinion on vaccine reaction was considered inconclusive and lacking duration information.

The report was found to be conclusory and defective, lacking necessary duration information for accommodation.

From the decision · page 8First, primary treating physician Dr. Ashida's medical evidence regarding applicant's inability to receive the Covid-19 vaccine was conclusionary and defective, and applicant failed to cure these defects. Dr. Ashida reported that the Covid-19 vaccine did not have any ingredients in common with the hepatitis vaccine and opined that applicant was unlikely to have anaphylaxis in response to the Covid-19 vaccine but instead might have a delayed reactions of more minor reactions such as rash, fatigue, arm pain, and headache. (Ex. 6, p. 2.)

Labor Code section 3208.3(h); Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241

To establish compensability for psychiatric injury, the injured worker must show actual events of employment predominantly caused the injury; employer may bar claim by proving good faith personnel action defense under Labor Code section 3208.3(h).

The Board applied the multi-level analysis from Rolda to determine if defendant's personnel actions were lawful, nondiscriminatory, and in good faith, and found defendant did not meet its burden.

From the decision · page 4Section 3208.3 governs claims for psychiatric injury. To establish that a psychological injury is compensable, an injured worker must show by a preponderance of the evidence that actual events of employment predominantly caused the psychological injury. (Lab. Code, § 3208.3(b)(1).)

Applicant submitted incomplete accommodation request lacking duration information despite repeated requests from defendant; defendant did not communicate the need for duration clearly enough.

From the decision · page 5Disability manager Gonzalez testified that the problem with applicant's note from Dr. Ashida is that it did not have a duration on it, which was required as part of the accommodation. (MOH/SOE, p. 6.) However, Dr. Ashida stated in his report of October 27, 2021 that applicant had an adverse reaction to a previous hepatitis vaccine and that she could have a reaction to the Covid-19 vaccine. (Ex. 6, p. 2.) The duration of applicant's requested accommodation would presumably be the length of time that the Covid-19 vaccine was required by defendant; however, defendant has not shown that the need for a duration was appropriately communicated to applicant. (MOH/SOE, p. 7.)

Defendant did not explore possibility of remote work as accommodation despite evidence that remote work was possible and requested by applicant.

From the decision · page 5Further, the evidence indicates that applicant filled out a reasonable accommodation form requesting remote work, such as maintaining and updating student records and vaccines and referrals, Spanish translations for special education individual education plans over zoom, translating documents for parents, and providing telephone and follow up support for the Student and Family Wellness hotline and the LAUSD pass portal. (Ex. 4, p. 6.) Defendant indicated in a notation from labor relations dated September 9, 2021, that while rare, it would consider remote work for some positions as part of reasonable accommodations. (Ex. 4, p. 11.) Defendant's notes stated that it would engage with employees in the interactive process and would consider multiple factors, such as the availability and feasibility of remote work, in determining if it could offer remote work as a reasonable accommodation. (Ex. 4, pp.14, 16.) While Gonzalez testified that remote work was possible if applicant had submitted compliant documents (MOH/SOE, p. 7), defendant has not shown that it explored the possibility of applicant working remotely.

Defendant's rules on accommodation duration and consideration of remote work were unclear and management personnel may not have followed proper procedures.

From the decision · page 6Therefore, defendant has not met its burden that its personnel actions were implemented in a manner that was lawful, nondiscriminatory and in good faith. The rules regarding the duration of the accommodation, the consideration of remote work, and evidence as to why some accommodations were granted are unclear and show that management personnel may not have followed proper procedures. (See City of Fresno v. Workers Compensation Appeals Bd. (Romero), supra, 65 Cal.Comp.Cases at p. 1052.)