One common scenario where AWOL (Absent Without Leave) rules and an employee's FEHA/ADA disability rights collide and conflict is state agencies and other employers that have set and rigid AWOL policies that they apply to everyone universally. The two common problems with such policies repeat themselves over and over in many wrongful termination claims, and these bad policies can work to an employee's advantage in proving their case in court:
* Rigid, uniform AWOL policies that are applied the same way to all employees. Even though it sounds fair to apply the same leave policy to all employees, it goes completely against the very essence of ADA and FEHA disability laws, which call for an individualized assessment of a qualifying disabled employee's disabilities, restrictions, and limitations. Indidivually evaluating a disabled employee's needs is a cornerstone of the "interactive process" in which the employer is required to engage in with a disabled employee.
* The language of the AWOL government code statute and other AWOL related statutes makes granting leave discretionary. The AWOL rules typically say that an employee who is out for a certain number of consecutive days without "approved" leave may be deemed AWOL resigned. The problem is that whether that leave is approved is completely up to the management. A manager may decide not to approve a disabled worker's medical leave for whatever reason, even though all the necessary medical documentation to support the requsted medical or disability leave has been provided.
The above two issues open a lot of doors for some employees, and especially state and county employees, terminated due to being AWOL, to legally attack their termination in court through a wrongful termination and/or disability discrimination lawsuit.
There is a lot of concern out there among employers and other entities to preserve confidentiality of medical information of their employees, patients, etc.., and for a good reason. However, when it comes to ensuring that your employer complies with your disability rights, it might be in your best interest to disclose more rather than less about your medical condition. This is because generally the employer does not have any ADA obligations if he doesn't know and has no reason to know that you have a qualifying disability / handicap.
A number of California cases hold that simply notifying the employer that you are sick and cannot make it to work for a day or two does not place the employer on notice of disability and thus does not trigger ADA protection at workplace. In Avila v. Continental Airlines (2008), Plaintiff submitted a number of Kaiser forms related to being absent from work for several days. The forms stated that the employee is excused from going to work for one or two days. The same forms did not provide any information about the nature of the employee's condition or the diagnosis. Thus, no disability discrimination claim could have been brought against the employer, since the employer was simply not aware of any disability, even though the employee suffered from pancreatitis, which is a serious condition that by all means qualifies as a protected disability under ADA.
The lesson that can be learned from the above case for the employees is that the employee should ensure that the employer is aware of the specific condition that the employee is suffering from or the basic symptoms that clearly indicate that it's not just trivial illness such as a flu. When obtaining medical note from the hospital, it's a good idea to ensure that the documentation transmitted contains sufficient information about the employee's condition, and is not limited to just for how long the employee is allowed to be absent from work.