Newsletter

Risk Management Educational Forum: Voyage through the Sea of Risks

Welcome aboard the S.S. Authority! We have set our course and are full steam ahead for the California JPIA’s 26th Annual Risk Management Educational Forum, which will be held as a virtual event on October 6-7, 2021. The theme of this year’s Forum is “Voyage through the Sea of Risks.”

It is all hands on deck, as our finest navigators will ensure that you and your crewmates know what it takes to find safe harbor no matter the weather. The Authority charts each Forum so that members can study topics and issues relevant to local government in areas such as legal liability, workers’ compensation, employment law, public safety, organizational thinking, governance, and legislation.

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Captain Richard Phillips will be on deck to inspire us all with his keynote address.  Captain Phillips’ book, A Captain’s Duty: Somali Pirates, Navy SEALs, and Dangerous Days at Sea, details his dramatic encounter with modern-day pirates and his remarkable rescue. The story was also transformed into an Academy-Award and Golden-Globe nominated film, Captain Phillips, which hit the big screens in the fall of 2013.

So don’t be left high and dry this October, as we voyage through the sea of risks.  May you have fair winds and following seas, as you begin your journey toward the Authority’s premier annual educational event.

Registration and general Forum information, including sessions and speakers, will be made available in the coming months.

Are Virtual Public Meetings Here to Stay? – Three New Bills Could Make Permanent Changes to Public Meetings

Originally published on March 22, 2021. Reprinted with permission from Best Best & Krieger LLP.

As we conclude a full year of virtual meetings, the use of “Zoom” and other virtual meeting applications has become so commonplace that it might be easy to forget that such virtual meetings are not actually a permanent part of the open meeting laws.

On March 17, 2020, Gov. Gavin Newsom issued Executive Order No. N-29-20, which suspended portions of the Brown Act that limit the use of teleconferencing for public meetings, but the Order will sunset when the pandemic ends. The Brown Act requires that all teleconference locations — i.e., the physical location that a council or board member call in from — be identified on the agenda and open to the public. Meaning, for example, if sickness impeded a city council member’s meeting attendance, that member would need to post their location on the agenda and invite the public into their house or hospital room. As we begin to look forward to a return to normalcy, will it also mean a return to these odd and outdated Brown Act teleconference rules?

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Perhaps not, but it depends on the approach the Legislature takes. Three pending bills would each provide a different approach to virtual public meetings.

Assembly Bill 703 – Continues Option for Virtual Meetings
AB 703, a bill that would codify the Executive Order’s virtual meeting opportunities, is the bill that many public officials considered a likely outcome of this year. It allows for virtual meetings indefinitely and permanently removes the existing Brown Act rules limiting virtual meetings or requiring public attendance at various physical locations.

It would generally allow virtual meetings to operate under regular meeting procedures (for public notice, public comment and public ability to observe the meeting). When local governments post the agenda or other notices, they would also post instructions for joining virtually. The bill would remove the current requirements that each teleconference location be identified and accessible to the public, curing problems of public access to, say, a council member’s home or hotel room. It would also remove the requirement that at least a quorum of the members of the legislative body participate from within the boundaries of the local agency. Lastly, the bill would renew requirements that legislative bodies make a procedure for handling and swiftly resolving Americans with Disabilities Act requests for virtual meetings.

Assembly Bill 361 – Virtual Meetings for Declared Emergencies Only
The next bill, AB 361, would allow virtual meetings with newer, streamlined procedures, but only if the purpose of the meeting is to declare a local emergency or if the meeting occurs during a period of a declared local emergency. This means most teleconferencing after the pandemic would likely need to occur under existing Brown Act rules.

The new rules for emergency declaration virtual meetings only would eliminate the Brown Act’s intrusive requirements requiring identification and public access to of a council members’ private domain. Further, members of the legislative body would not have to join from within the physical boundaries of the jurisdiction. The bill also provides that the meeting must protect statutory and constitutional rights of parties and the public, providing an odd reference to constitutional compliance, which is legally superfluous.

Assembly Bill 339 – Mandatory Virtual Meetings with Translation Services
Many local governing bodies will likely resume in-person meetings post-pandemic. AB 361 and AB 703, if passed, will provide the option for public boards to hold virtual meetings. AB 339, on the other hand, goes a step further; it will require public boards to continue to provide virtual access for the public, even if all of the board or council members attend in-person.

The additions would mandate virtual public access by calling in and by Internet, and require that local governments provide closed captioning (on-screen text for those who cannot hear audio) for virtual participants. The instructions for virtual participation would have to be posted with the agenda. Local governments would also have to provide a place for the public to go to provide in-person comments — even in states of emergency.

Lastly, AB 339 would not only require virtual access, it would also add new provisions to the Brown Act requiring public agencies to provide live translation services during all meetings, including real-time translators during all meetings and a translation of all agendas and meeting instructions into all languages spoken by 5 percent or more of the jurisdiction’s population.

Each of these Assembly Bills remains active as of publication of this Legal Alert and have potential to become law. Best Best & Krieger LLP will continue to track the progress of these bills for future updates via Legal Alerts.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

Failure to Accommodate WiFi Sickness States FEHA Claim

Originally published as a CALPELRA Alert on March 2, 2021. Reprinted with permission from CALPELRA.

On February 18, 2021, a California appellate court found that a teacher stated a prima facie claim that the Los Angeles Unified School District failed to reasonably accommodate her electromagnetic hypersensitivity disability when the electromagnetic frequency from her school’s WiFi made her sick. The trial court had granted the District’s demurrer on all counts, dismissing the case at the early pleading stage. The court of appeal agreed with the trial court’s decision to dismiss claims alleging discrimination, retaliation, and failure to engage in the interactive process, but disagreed with the dismissal of the failure to accommodate claim, and allowed those claims to proceed. This decision does not reach the ultimate conclusion that the District failed to accommodate the teacher; that decision will be addressed by the trial court based on evidence presented there.

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Brown, a teacher in the Los Angeles Unified School District, requested disability accommodations after the District began operating an upgraded WiFi system at her school. Brown alleged that the electromagnetic frequency (EMF) from the new WiFi system caused her chronic pain, headaches, nausea, burning sensations on her skin, shortness of breath, inflammation, heart palpitations, respiratory complications, foggy-headedness, and fatigue.

Leaves Of Absence And Initial Accommodation Request

In May 2015, Brown reported symptoms and was granted intermittent leave for several days. When she returned to school the following week she quickly fell ill again, and her medical provider diagnosed her with “electromagnetic hypersensitivity” (EHS). Brown filed a formal request for accommodation with the District. The District held its first interactive process meeting with her in July 2015, and agreed to disconnect the WiFi access points in Brown’s classroom and in an adjacent classroom, and also to use a hardwired computer lab with WiFi turned off during Common Core testing.

Brown provided a note from an internist stating that “emerging EMF sensitivity was disabling” the teacher. Nonetheless, she returned to work under the accommodations agreed upon. Within a month of returning to work, another physician placed her on medical leave for two months due to migraines, headaches, and nausea, and stated that upon returning to work Brown needed to “work with minimal WiFi exposure.” Another doctor extended this two-month leave for an additional seven months, indicating that Brown could return to work if EMF exposure or measurements were reduced.

Second Accommodation Request And Disability Leave

While on leave, Brown filed a second request for accommodation, stating that “her symptoms persisted due to WiFi and radio frequencies to which she was continuously exposed.” She asked the District to conduct studies to evaluate and determine the best location on campus where she would encounter minimal exposure to WiFi and radio frequencies, and also to consider using paints and other shielding materials to block the EMF in her classroom. The District initially denied the accommodation request, relying on tests that its consultants had previously conducted finding that the WiFi system was “safe.”

After Brown appealed the denial, the District agreed to provide a neutral expert EMF inspector for further microwave measurements. The District offered Brown three options for the testing: (1) use the District’s existing consultant to conduct the testing; (2) choose another consultant (with a potential delay in the process); or (3) retract the request for additional testing. Brown requested that the testing be conducted by someone other than the District’s existing consultant. About two months later, the District informed Brown that it did not agree to use her selected consultant and that the District’s prior consultant had deemed the working environment to be safe and non-hazardous, so no further testing was needed. Brown responded that given the District’s retraction of the accommodation it had promised, she could not return to work. She took a disability leave, exhausting her 800 hours of accrued paid time off and sick leave, and eventually ending her employment.

Brown’s FEHA Claims

Brown alleged that she could have performed the essential duties of her job if she had been provided a reasonable accommodation, and that the District violated the FEHA by: (1) Discrimination based on physical disability; (2) failure to accommodate; (3) failure to engage in the interactive process; (4) retaliation; and (5) failure to prevent discrimination and retaliation.

The trial court granted the District’s demurrer dismissing all of Brown’s claims at the early pleading stage. The Court of Appeal agreed with the trial court’s dismissal of four of the causes of action, but reinstated the cause of action for failure to provide reasonable accommodation for a physical disability.

Brown Adequately Pled A Physical Disability Under The FEHA

In seeking to dismiss all five causes of action, the District argued that electromagnetic sensitivity is not a “recognized” disability, relying in part on federal cases under the Americans with Disabilities Act. The Court of Appeal rejected the District’s argument, finding that California’s FEHA is more protective than the federal ADA. Under California law, the definition of “physical disability” protects employees “from discrimination due to actual or perceived physical impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.”[1]  The FEHA further states that a physical disability includes any physiological disease, disorder, condition . . . that does both (1) affects one or more listed body systems, and (2) limits a major life activity.

Brown’s complaint alleged that she could not work because she experienced symptoms of microwave sickness or EHS, including chronic pain, headaches, nausea, itching, burning sensations on her skin, ear issues, shortness of breath, inflammation, heart palpitations, respiratory complications, foggy headedness, and fatigue. These allegations meet the FEHA definition of a physical disability.

Discrimination And Retaliation Claims Dismissed: No Allegation Of Adverse Action Or Motive

The Court of Appeal agreed with the District that Brown’s retaliation claim should be dismissed because it failed to adequately allege adverse employment action was taken because of her complaint or other protected activity. The mere fact that she made a complaint and the District reneged on its initial accommodation agreement does not show discrimination for engaging in protected activity.

The Court dismissed Brown’s disability discrimination claim because she failed to allege any adverse employment action. The Court explained that failure to make reasonable accommodation and/or to engage in the interactive process are specifically prohibited by the FEHA and are separate causes of action, but such acts “without more” do not constitute adverse employment action for purposes of stating a claim for disability discrimination.  Additionally, even if these acts were deemed to constitute adverse employment action, Brown failed to allege any facts suggesting a discriminatory intent behind the actions. The complaint failed to allege bias against Brown because of her disability, and only alleged a disagreement about whether the WiFi caused her disability.

Failure To Engage In Interactive Process Claims Dismissed

The Court found that Brown’s complaint failed to allege that the District failed to engage in the interactive process. The complaint demonstrated that the District engaged with Brown and agreed on a reasonable accommodation (hiring an independent consultant to determine where on campus exposure to the EMF was most minimal), but changed its mind and failed to provide the accommodation to which it had agreed. Such facts support a failure to provide reasonable accommodation claim, but not a claim for failure to engage in the interactive process. Citing a prior court of appeal decision finding that allegations of failure to engage in the interactive process cannot be used to support a failure to accommodate cause of action,[2] the Court concluded, “[w]ithout more,” allegations of failure to accommodate are insufficient to constitute a failure to engage in the interactive process claim.

Failure To Provide Reasonable Accommodation Claim Allowed To Proceed

A failure to accommodate claim under the FEHA requires a showing that the employee has a covered disability and can perform the essential functions of the position with reasonable accommodation(s), and the employer failed to reasonably accommodate the disability. The Court explained that the determination of the reasonableness of an accommodation is a question of fact that cannot be determined at the pleading stage.

Upon receiving notice of a disability, an employer has the burden to take positive steps to accommodate the employee’s limitations. The employee has the duty to cooperate with the employer’s effort by explaining the disability and qualifications. The reasonable accommodation requirement “envisions an exchange between employer and employee in good faith.”

The Court concluded that Brown stated a claim for failure to accommodate; her claim alleged that she has a physical disability but she can perform the essential functions of her teaching position with an accommodation to which the District initially agreed, but refused to honor and/or other reasonable accommodations such as the use of paints, fabrics, and/or provide other shielding materials to bock or minimize exposure to EMF. The Court did not find that the District failed to accommodate Brown, it merely decided that her claim could not be dismissed at the pleading stage and should proceed in the trial court.

Practitioner Tips

• This case serves as a good reminder that California’s FEHA is more protective than the federal ADA.
• Many employers have struggled with requests for accommodation by employees they doubt are suffering from disabilities. This case highlights the fact that the definition of disability under the FEHA is broad and that employers must take employees’ disability claims seriously, particularly when supported by documentation from medical providers.
• The interactive process requires a good faith attempt to find reasonable accommodations. In this case, the District initially agreed to hire a new consultant to determine the places on campus with minimal EMF, but subsequently refused to honor the agreement or to provide other reasonable accommodations such as use of shielding materials. The Court found that the District’s actions did “not align with those of an employer taking positive steps to accommodate the employee’s limitations.”
• The Court’s decision only found that Brown’s complaint stated a cause of action for failure to accommodate. The trial court will assess (among other things) whether there were any reasonable accommodations that would have ameliorated Brown’s disability and allowed her to continue working. The District may still prevail in this case.
• If a requested accommodation would impose an undue hardship on the employer, it is the employer’s burden to demonstrate the undue hardship, and to work with the employee to explore other accommodation options. At the pleading stage, the employee is not required to show that the proposed reasonable accommodation would not impose an undue hardship.
• Moreover, if an agreed-upon accommodation does not work, the employer has a duty to provide further accommodation upon receiving notice of the accommodation’s failure.
• The three-judge panel’s decision included a concurring opinion by one justice who agreed with the majority that the failure to accommodate claim should be allowed to proceed, but worried about “giving any sort of green light to this unprecedented and unorthodox disability claim.”  The justice asserted that this decision makes the California Court of Appeal “the first court in the United States of America . . . to allow a claim that ‘WiFi can make you sick.’” The concurring justice encouraged the trial court to use a court-appointed expert to assess the science behind the claim.

CALPELRA Alerts are a CALPELRA member benefit, providing practitioners with key information for immediate guidance in day-to-day activities by summarizing significant court cases, administrative decisions, pending legislation, or other importation information.

[1]  Brown v. Los Angeles Unified School District (Feb. 18, 2021, B294240) ___ Cal.App.5th ___, [p. 10], citing Cal. Gov. Code § 12926.1(a); 2 Cal. Code Regs. § 11065(d)(8).

[2] Id. at pp. 18-20, citing A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464.

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