Arkady Itkin - San Francisco Wrongful Termination and Personal Injury Lawyer

When AWOL Rules and ADA / FEHA Disability Rights Collide

01/31/2013

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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.  
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A Lesson from the Court: the Importance of Requesting Accommodation to a Disability

11/25/2011

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The King v United Parcel Service (2007) case makes several important points about disability related employment case. One of those lessons is the importance of requesting accommodations to a disability, or at the very least alerting and informing the employer about the disability or the medical condition that you suffer from, the symptoms you are dealing with and how they affect your ability to perform your job duties. 

In King, a 30-year employee of UPS was terminated for allegedly falsifying a time card just two months after returning from medical leave in connection with a serious medical condition. The rare and somewhat unique element of the case is that the Court of Appeal was pretty clear in expressing sympathy toward the Plaintiff, even though the Court held against the him, dismissing all claims. In that case, the Court analyzed all of Plaintiff's claims and noted that the claim for failure to accommodate was a close one but still had to be dismissed because the terminated employee did not communicate his symptoms to his employer upon return, did not request any kinds of accommodations, and therefore the employer simply was not on any kind of notice of King's need for accommodations. This mistake is so easy to avoid through a simple request for reasonable accommodation letter that every employee who needs and accommodation should fill out and forward to his superiors and the human resources department. 

Please read below the full text of the court's decision in the King v UPS case. 

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Requesting Reasonable Accommodations at California Workplace

11/12/2010

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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.
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Employers' Leave Policies do Not Determine Employee's Legal Leave Rights

09/23/2009

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Recently, I have been running over and over into the same issue: an employer creates a leave policy which makes sense to them but is absolutely incompatible with the California laws on disability leave and FMLA/CFRA. For example, a typical employment policy in a handbook or employee manual might state that if an employee doe not report illness within 24 hours or if he doesn't provide medical certification within a day or two of taking time off, he will be considered terminated or he will be considered to have abandoned his job. This kind of policy is a mine field for an employer, as it ignores the basic obligations of the employer underr California Fair Employment and Housing Act which mandates that an employee must notify his employer of his condition/disability within reasonable time, without imposing specific restrictions.

For obvious reasons due to certain circumstances, such as being hospitalized for instance, an employee might only be able to call or e-mail his employer directly or through his friends/relative (if the employee is unconscious or not mobile, for instance) and notify an employer of his condition without being able to provide medical paperwork within the time prescribed by the company policy. Terminating an employee, just because he didn't provide the medical certification documentation right on time virtually guarantees that the employer will be held liable for violation various disability laws, especially if the employer was put orally or otherwise on notice of the employee's medical condition, and if that employee had a serious illness or disability.
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Basic Disablity Rights at Workplace in California

06/01/2009

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If you are an employee in California who is or has become disabled as a result of work related injury or non-work related medical condition, it is important that you are aware of your three fundamental rights and your employer's obligations toward you: 

* You have the right to be free from disability discrimination under FEHA (California Fair Employment and Housing Act which applies to all employers that employ more than five persons). This means that your employer may not treat you differently in terms, conditions or privileges of your employment on the basis of your disability or your serious medical condition. Further, if the company implements a layoff, it may not take into account a workers disability as one factor in determining whether to choose him/her for a layoff.

* Your employer, if subject to FEHA, upon notice of your disability, has an affirmative duty to engage in interactive process with you to find reasonable accommodations to your disability. This means that your employer must engage in a form of dialogue with you to figure out what the employer can do to eliminate or reduce the challenges that your disability creates in your work performance. This duty is continuing, which means that if with time a certain accommodation doesn't work or if your condition changes or aggravates, the employer will remain obligated to continue the interactive process to accommodate your disability unless such accommodations impose undue hardship on the employer's business. 

* If you are forced to take medical leave due to your disability or a serious medical condition, you are have right to return to work and be reinstated to the same or a similar position at your workplace.

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