Following the initial meeting, the Joint Port FLRC may, in its discretion, obtain an opinion from a designated medical specialist regarding: 1) whether the applicant or employee suffers from a disabling condition which limits one or more major life activity, 2) the applicant or employee’s functional abilities and limitations with respect to the essential functions of the job he or she holds or seeks; and 3) possible accommodations.
One medical specialist shall be designated in each port to assist the Joint Port FLRC in reviewing requests for reasonable accommodation. Each designated specialist shall be made aware and become knowledgeable of the nature and requirements of longshore, clerk, and walking boss/foreman’s work and the established conditions and waterfront operations in the industry. The designated medical specialist shall also be knowledgeable as to the legal standards and requirements related to the employment of disabled workers with or without reasonable accommodation.
In determining whether a particular applicant or employee has a disabling condition which limits one or more major life activity, the medical specialist will be asked to render an opinion based on any and all of the following s/he deems appropriate: an independent medical examination of the individual by an appropriate health care practitioner, the individual’s medical history, medical reports from the individual’s personal physician, reexamination of the individual, medical tests, x-rays, etc.
The medical specialist shall provide the Joint Port FLRC with a written report setting forth an opinion as to whether the applicant or employee has a disability which limits one or more major life activity along with an opinion as to the individual’s functional abilities and limitations in relation to the essential functions of the job which the employee or applicant holds or seeks. Where appropriate, the medical specialist shall also issue an opinion and/or recommendation as to any accommodations that s/he believes would enable the disabled applicant or employee to work in the industry.
In the absence of unusual circumstances, the Joint Port FLRC will schedule an appointment for the applicant or employee with the medical specialist to occur within 14 days following the initial meeting. In the absence of unusual circumstances, the medical specialist, in turn, will provide his or her written report to the Joint Port FLRC within 14 days after this appointment takes place.
3. Additional Meeting Before Joint Port FLRC
Within 7 days following receipt of the medical specialist’s written report, the Joint Port FLRC may, in its discretion, invite the applicant or employee to attend a further hearing before the Joint Port FLRC and/or request the individual to provide additional documentation or information relevant to the accommodation request. The Joint Port FLRC may also, in its discretion, proceed to gather any additional information it deems appropriate in determining whether a reasonable accommodation exists, including consulting with legal counsel and other technical assistance before rendering a decision.
In the absence of unusual circumstances, the Joint Port FLRC shall conclude the interactive process and prepare a written decision regarding the proper disposition of the request no later than 14 days following receipt of the medical specialists’ written report. The Joint Port FLRC shall provide the applicant or employee involved written notification of its decision, including a written explanation of the basis for its decision. The Joint Port FLRC shall make its decision regarding the accommodation request based on the facts developed during the interactive process.
If the Joint Port FLRC agrees on the disposition of the accommodation request, such decision shall be final and no appeal may be taken therefrom. If the Joint Port FLRC does not agree on the disposition of the accommodation request, the accommodation request shall be immediately referred to the Coast Arbitrator for decision. In such cases, the decision of the Coast Arbitrator shall be based solely on the written record of the Joint Port FLRC proceedings.
Joint Port FLRC members in each covered port will be provided instruction as to the contractual requirements related to employment of disabled employees with or without reasonable accommodations along with training as to the proper handling of requests for reasonable accommodation by disabled employees and applicants.
IV. Temporary Accommodation While Requests Are Being Processed
Temporary accommodations may be granted to individuals who have filed a request for accommodation under the PCWBFA ADA Policy while the accommodation request is under review. Requests for temporary accommodation shall be acted upon at the initial meeting held by the Joint Port FLRC with an applicant for disability accommodation upon receipt, review and approval by the Joint Port FLRC of certification from the applicant's own health care provider -- on the attached form -- that (1) the applicant has work restrictions that result from a mental or physical impairment, (2) but that he or she can nonetheless perform particular work tasks without creating a risk of injury to him/herself of others with specified accommodations.
Temporary accommodations granted by the Joint Port FLRC shall be limited to an initial ninety-day (90) period. The 90-day period may be extended by the Joint Port FLRC in time increments not to exceed 30 days in length, until the ADA Policy accommodation process is concluded provided that delays in completing the interactive process for determining appropriate accommodations under the ADA Policy result do not result from conduct of the applicant intended keep the temporary accommodation in place for longer than necessary. It is the responsibility of the employee who has been granted a temporary accommodation to contact the Joint Port FLRC before the temporary accommodation expires in order to renew it in the event that interactive process is ongoing.
Temporary accommodations granted by the Joint Port FLRC shall be consistent with all seniority-based rules for dispatch and promotion within the industry and shall not interfere with the seniority-based expectations of other workers. For example, no applicant seeking temporary or permanent accommodations shall be promoted from one registration status or job classification to another (such as from the longshore or marine clerk or foremen’s registration lists) as a disability accommodation, where such promotions are fundamentally seniority based.
Temporary Joint Port FLRC accommodations do not need to mirror the accommodation sought under the ADA Policy being requested by the individuals, if the Joint Port FLRC, in communication with the individual, reasonably believes the temporary accommodation will be effective and is reasonable and that, with that accommodation, the individual can safely and efficiently perform the job’s essential function.
Temporary Joint Port FLRC accommodations do not mean the Joint Port FLRC agrees to the ADA Policy request of the individual, nor will an individual be entitled to retain that accommodation if the Joint Port FLRC eventually decides to the contrary. The Joint Port FLRC retains the authority to decide the appropriate response to the ADA Policy request and may revoke, amend or replace any temporary accommodation put into place by the Joint Port FLRC and may deny a request, notwithstanding that a temporary accommodation was provided by the Joint Port FLRC.
Nothing in the handling of a request under the ADA Policy, including any grant of a temporary/interim accommodation, shall be construed as an admission by the PMA and its members and or the ILWU and its local affiliates, or as evidence that an individual is disabled, is regarded as disabled, or has a record of disability within the meaning of the Americans With Disabilities Act or any federal, state or local law.
V. Scope of Procedures
The procedures described above shall be utilized in all cases where accommodations have been requested by applicants for industry employment and by incumbent workers with respect to hiring, dispatch and promotion within the industry. The procedures shall be applied flexibility in accordance with the local port practices with respect to the hiring, dispatch and, where applicable, promotion of workers to the foremen’s registration list as they may vary from port to port.
This policy sets forth the procedure to be used by the Joint Port FLRCs for considering and resolving accommodation requests presented by disabled applicants and employees under the Americans With Disabilities Act and applicable state law. Nothing in this policy may be construed to require the ILWU and the PMA to provide applicants or employees with particular accommodations or to provide accommodations where, in the opinion of the Committee, none are warranted. Nor may this policy be construed as acceptance by the ILWU or the PMA of additional, greater or different legal or financial responsibilities than those which are imposed on them by law for providing accommodations to disabled applicants or employees.
The procedures set forth in this policy may be flexibly applied by the Joint Port FLRCs in particular cases when, in the judgment of the Joint Port FLRC, the facts and circumstances warrant it. The time lines for accomplishing particular steps of the procedure are intended as guidelines, not strict time limits, which may be extended or waived in appropriate circumstances. Failure of the Joint Port FLRC to strictly comply with the time lines shall not constitute a violation of the policy.
Request for Reasonable Accommodation Form (for all requests)
Authorization for Release of Medical Records to Medical Specialist (for all requests)
Authorization For Use Or Disclosure Of Health Information Form and Questionnaire