Although simply keeping an employee away from work is an easy route to wait till he/she recovers, and the employer might have the best intentions of protecting an employee, and encouraging the disabled worker to recover sooner than later by taking time off, consider as situation where that employee's disability or limitation will last indefinitely or will be permanent. If that employee is place on so-call involuntarily medical leave, he will be effectively terminated, since he will have to stay on leave as long as he is disabled, or - forever. This is pretty much equivalent to a wrongful termination based on disability discrimination.
Consider a situation where an employee has a certain disability or medical condition that prevents him/her from performing a few of the many job duties, without affecting his ability to perform many other job duties. That employees is likely entitled to reasonable accommodations. Some employer, however, choose to "play it safe" placing that kind of employee on "involuntary illness leave". This however is likely to be illegal and is tantamount to suspension without leave (Bostean v. Los Angeles Unified School District), and can be considered a disability discrimination under ADA and FEHA.
Although simply keeping an employee away from work is an easy route to wait till he/she recovers, and the employer might have the best intentions of protecting an employee, and encouraging the disabled worker to recover sooner than later by taking time off, consider as situation where that employee's disability or limitation will last indefinitely or will be permanent. If that employee is place on so-call involuntarily medical leave, he will be effectively terminated, since he will have to stay on leave as long as he is disabled, or - forever. This is pretty much equivalent to a wrongful termination based on disability discrimination.
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I have a strong feeling that age discrimination and age related wrongful termination claims will be on a rise within the next few years. This is in part because of the companies' need for increased productivity, longer work hours, and the pressure to reduce costs by eliminating the more senior and highly compensated workers as well as by saving on healthcare costs.
The other factor that may encourage companies to terminate older workers is that age discrimination is not easy to prove, to say the least. It's easy for a company to fabricate a criticism or false allegation of misconduct or insubordination to issue a couple of write ups to an older worker and make it look like he/she was terminated because of some abstract violations. Or, the company may decide to undergo "restructuring" and "lay off" certain workers, many of whom happen to be older, and then go through another "restructuring" just a few months later and higher new and much younger workers. Luckily, the courts recognize the above tactics that companies use and they consider many kinds of indirect evidence if age discrimination, including inconsistent or untruthful reasons for termination, patter and practice of replacing older employees with younger workers, ageist remarks, etc. See further discussions of some of the other common reasons for age discrimination at workplace. |
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