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. 
1 Comment
 
 
The California cases specifically addressing disability discrimination claims on the basis  of weight are few but instructive. Most courts seem to agree that obesity does not constitute a qualifying disability at workplace without proof of physiological cause for that condition. Cassista v. Community Foods, Inc. (1993). That is, simply becoming overweight because of one's self-imposed and voluntary eating habits or lack of exercise is not a qualifying disability, while being overweight due to genetic, hormonal or other disorder may be a protected disability, unless maintaining a certain weight is a required occupational qualification, like it is in the case of paramedics, firefighters, police officers, and flight attendants. 

Of course, to be protected under the disability laws, the employer must have actual knowledge that the subject employee's obesity is cause by a particular physiological condition. This means that if an obese employee is seeking an accommodation to his/her condition, it is in that employee's best interest to explain to his management or human resources managers that the reasons for his obesity are outside of his control and are therefore likely to be a medical condition, entitled to legal protection. If the employer is not aware of that, they will have no obligation to comply with disability laws with regard to that overweight employee.
Add Comment
 
 
Watch this brief video for important advice on requesting reasonable accommodations to your medical condition at workplace in California and avoiding one common mistake that many disabled workers make when returning to work after disability / medical leave.
Add Comment
 
 

Under California disability laws, an employer has an affirmative obligation to engage with an employee who has actual or perceived disability (or medical condition) in an interactive process or direct communication to find reasonable accommodations to his or her condition.   

After the employer provides an initial accommodation, the employer's duty under the law does not end, but the duty to re-initiate the interactive process is only triggered if the employer learns or the employee advises the employer that the offered accommodation is not working. The interactive process envisions a continuous flow and exchange of information between employee and employer.

Once an employer has provided an accommodation, there must be a continuous reassessment of whether the provided accommodation continues to be effective, but only if the employee notifies employer of that need or if the employer should reasonable know of such need, based on the obvious condition and the difficulties that the employee continues to experience and the employer witnesses.

If you work and reside in the Stockton area, and have questions about your rights as a disabled or potentially disabled worker, feel free to contact experienced California employment lawyer in the Stockton area for a free, no-obligation consultation to discuss your concerns.

Add Comment
 
 

Many employees suffering from a disability or a particular medical condition qualify for FMLA leave, under which they are entitled to be placed on unpaid leave for up to 12 weeks in a year, assuming that certain FMLA conditions are satisfied. 

However, very few employees are aware that upon expiration of FMLA leave, they might be entitled to additional time off as a reasonable accommodation to their disability / medical condition. Under California law, an employer must engage with an employee in a good faith interactive process to find out if the employee may be provided reasonable accommodation to his or her disability / medical condition at workplace. One of those reasonable accommodations can be extending the employee's leave beyond FMLA leave, unless this extended leave would impose undue hardship on the employer's business. An employer who fails to engage in this interactive process to investigate whether reasonable accommodations can be provided to the disabled / sick employee may be liable for disability discrimination, failure to accommodation and other violations of employment laws in California. 

If you believe that your employer did not fulfill it's obligation under California law and you would like to discuss your situation at workplace, contact San Francisco employment attorney Arkady Itkin for a free, no-obligation consultation.

Add Comment