California FEHA (Fair Employment and Housing Act) permits an employer to require a medical or psychological examination of an employee, also known as fitness for duty examination if it can show that the examination is "job related and consistent with business necessity". This is one of the ways that an employer can assess whether an employee can perform his job in a way that wouldn't pose danger to himself or others. Further, if an employee has or may have a disability, a fitness for duty exam may help the employer determine whether that employee needs an accommodation to his disability, and what kind of accommodation can be effective, if the disability and the resulting limitations are not obvious.
A fitness for duty examination is "job related" if it is "tailored to assess the employee's ability to carry out the essential functions of the job or to determine whether the employee poses a danger to himself or others due to his disability. There is a "business necessity" for a fitness for duty examination if "the need for the disability inquiry or medical examination is vital to the business." (Cal. Code Regs., title 2, section 11065(b)).
For example, in a situation where a professional driver passes out while driving or reports feeling dizzy, the employer will definitely have the right to send that employee to undergo fitness for duty examination in order to determine whether it is safe for him to continue driving, and what, if any, measures can and should be taken to minimize the risk of accident due to that employee's physical condition.
Generally, unless fitness for duty examination appears to be unreasonably invasive, it is in the employee's best interest to comply and undergo such an examination in order to help the employer to do what is necessary in order to accommodate that employee's disability or medical condition as required by ADA / FEHA or FMLA/CFRA.
It is not a secret that many companies strongly prefer that their sales stuff consist of physically attractive individuals - be it very young and attractive women, or men with presence and confidence who are, again, young. It has been recognized for many generations in business that beauty sells, and younger, more attractive people sell more and better. However, this kind of attitude toward hiring and selection of sales people in any industry perpetuates discriminatory employment practices against older workers, thereby turning them into victims of something that is completely out of their control, and something that awaits each and every one of us - being older.
Age discrimination at workplace is prohibited by law in California. The California Fair Employment and Housing Act prohibits not hiring, termination or otherwise discriminating against potential or existing employees based on age. Of course, the vast majority of employers this day and age know better than to tell an employee outright that they terminate him because of age and they find far more subtle ways of getting rid of older workers, most common of which are fake lay-offs as a disguise for getting rid of older workers and fabricated performance issues.
There are creative ways to prove age bias and discrimination by the employer against an older employee through the so-called "circumstantial" evidence. This typically includes encouraging an employee to retire early, giving an employee age-based nicknames such as "dad" or "father time" or "oldie" or "grandpa," making such comments as "we need fresh blood in here" or "we need someone faster," or systematically replacing older workers with the younger once due to fabricated performance issues. This kind of evidence may be critical in trial or in any attempt to settle your age discrimination claim. Therefore, it's very important that you preserve as much of the documentation as possible that would reflect one or more of the above kinds of facts in order to prove your age discrimination and/or wrongful termination case.
Employers often try to defend FMLA/CFRA violation claims by arguing that they believed in good faith, even if incorrectly, that the employee was not entitled to FMLA/CFRA leave, and therefore they denied it. This argument, however, cannot be an effective defense for employers under the existing FMLA and CFRA laws and regulations. Proving FMLA violation only requires that the employer deny the employee's entitlement to FMLA. Liu v Amway Corp. There is no mention in the law that the violation must be intentional. Therefore, even if the denial of FMLA/CFRA leave by the employer results from innocent mistake or not knowing or understanding medical leave laws, it would still give rise to an FMLA/CFRA violation claim.
Under California CFRA, the employer bears the burden to determine whether an employee's leave is protected - that is, to "inquire further of the employee if it is necessary to have more infomraiton about whether CFRA leave is being sought, and ultimately designate leave, paid or unpaid, as CFRA or FMLA qualifying. Cal. Code Regs., tit 2, sections 7297.4(a)(1)(A). Once an employee has submitted a request for leave under CFRA, the employer is charged with knowledge that the employee's absences pursuant to the leave request are protected, and may not thereafter take adverse employment action (i.e. demotion or termination) against the employee because of that leave.
It's important to remember that some conditions that cause significant pain or discomfort are not considered workplace disabilities under ADA/FEHA, and therefore suffering from such a condition does not entitle an employee to certain disabled workers rights, such as the right to reasonable accommodations and disability leave (although an employer might choose to grant those rights pursuant to its own policies or as a courtesy to the employee who is having that illness).
Generally, "disability" does not include conditions that are mild, which do not limit a major activity, as determined on a case by case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises or abrasions; non-migraine headaches, and minor and non-chronic gastrointenstinal disorders. 2 CCR section 11065(d)(9)(B). By contrast, the regulations define "disability" to "include ... deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, cerebral palsy, and chronic or episodic conditions such as HIV / AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis and heart disease.
One common mistake that employees make when requesting medical leave is only disclosing the symptoms but not the underlying condition to the employer, thereby not putting the employer on notice of their disability. There is a big difference between telling the employer that you need time off because you have been coughing vs informing the employer that you need time off because of cough caused by an asthma attack.
You find out that you are pregnant, but you are hesitant to disclose this to your employer and you decide to wait for at least a few months to think about your options. About a month or more into your pregnancy you start getting sick which forces you to take sick days or other types of days off. You never tell your employer that the reason for your feeling sick is pregnancy related. Then, they fire you for taking too many days off work without having any idea that you were pregnant. This is the type of situation where no discrimination or wrongful termination claim can be made, since the employer was not on notice of either pregnancy or pregnancy related issues.
Generally, you have nothing to gain by keeping your pregnancy secret, you disclosing it sooner than later is almost always a good idea. First the employer will find out sooner or later that you are pregnant, so why bother and hide. If your employer is the type of company that doesn't know the law or doesn't mind violating the law then they will fire a pregnant woman whether she discloses her pregnancy right away or not. But you can only bring a claim against them for pregnancy discrimination, if they are on notice of both, your condition and associated medical issues.
If, on the other hand, your employer tries to comply with the law, then the sooner you let them know about your pregnancy and any need for accommodations because of any kind of pregnancy related sickness, the better off you will be, because the employer will have more time to accommodate you by either adjusting your work station, or giving you time off or providing other types of modification to your work, schedule, etc... Having more time to work with you will also make it easier on the employer to do what they need to do to help you.
Suppose an employee has been injured or is suffering from some kind of medical condition that qualifies as a disability under ADA / FEHA, where one effective accommodation would be to transfer him to a different position. Assuming that doing that would violate the employer's established seniority policy and would give the disabled employee the same position that another, more senior employee is otherwise entitled to - would the employer be obligated to do that?
According to to the US Supreme Court in the US Airways Inc. v Barnett (2002), the answer is generally no. In the court's view, the seniority system will prevail. When the requested accommodation conflicts with seniority system, that accommodation is not "reasonable", unless the employer shows that making such an exception to the seniority system would be appropriate.
Obviously, the above language from the highest court leaves a lot of grey area for arguing which exceptions to seniority systems are acceptable and which are not, and every situation has to be evaluated on a case by case basis, in light of its own unique facts and circumstances. Sure, the needs of both, the disabled employee and the other employee who is supposed to be reassigned or promoted based on seniority will have to be balanced in making that determination.
Today, we received good news from a client who we represented at an appeal hearing at the San Francisco office of unemployment insurance appeals board. The situation was somewhat unique. The client, who was a new employee for the City of San Francisco had a terminally sick mother, who lived overseas and who needed constant care and supervision. Our client approached his employer's hr and explained the situation, expecting them to suggest what options he has in order to take care of his mother. The employer than told him that his only option was submitting a letter of resignation, and that's what he ended up doing. Our client applied for and was initially granted unemployment benefits until the employer appealed, arguing that the employee could have and should have explored other options, such as requesting leave and since, according to them, he resigned without good cause, he should not be qualified for unemployment benefits.
At a hearing, we argued that even though our client could have and should have requested leave, the employer is in a better position to do that, and the fact that they offered resignation as the only option (as was reflected in the e-mails) suggest that obtaining leave would not have been likely. Also, the employer did not clearly communicate leave rights to the employee upon hiring (the employee handbook was very lengthy, vague and lacked employee signature acknowledging receipt).
In its decision, the Appeals Board first pointed out that under the law caring for an aging parent is a substantial compelling reason for resigning, entitling claimant to benefits. The judge found claimant's testimony that he was never advised of leave, that he tried to find someone else to take care of his ill mother but couldn't, and that he returned from overseas just a few weeks after and attempted to get his job back with the same employer, to be credible evidence that he resigned with good cause, affirming the decision to grant the benefits.
Qualifying for unemployment benefits after resigning is often an uphill battle, since the employee has to show "good cause" for resignation, which is substantial, compelling reason for quitting. It cannot be a trivial reasons, such as bad office relationships, unfavorable performance review, not being promoted, etc. If you are thinking of resigning but you are concerned about your potential eligibility for unemployment benefits, it would be a good idea for you to run your situation by an experienced employment attorney, who will be able to assess your chances of obtaining unemployment benefits in light of your specific circumstances.
California employers have an obligation to conduct proper workplace investigation of harassment or discrimination allegations by an employee and taking all reasonable steps to remedy and prevent future harassment. As the court recently reiterated in Nazir v United Airlines, a poorly conducted, biased investigation can intself be evidence of discriminatory motive against the alleged victim of discrimination or harassment. While every situation has its own unique aspects that call for an investigation process tailored to that situation, there are three common mistake that employers make when conducting a workplace investigation that may cast doubt not only on how reliable the conclusions are, but also on whether the investigation was conducted in good faith, and whether the employer really intended to get to the bottom of the incident/s in question.
1. Failing to interview both the accused and his witnesses as well the accuser and his witness.
Interviewing only one side or neglecting to interview potentially critical witnesses for one of the sides will make the investigation look particularly unfair and biased. It is the employer's duty to interview and gather information from all the available sources on both sides, before making any conclusion or taking action against an employee.
2. Delaying the investigation
While there is no bright line rule on how long it should take for the employer to start and complete the investigation, the sooner you start the better. This is especially true in cases where the employer is a large and well-funded company with resources specifically allocated for ensuring workplace safety. Waiting for weeks to initiate investigation may be unacceptable, especially if the alleged conduct is egrigious enough, such as sexual harassment, or violence / threats of violence at workplace.
3. Having the investigation conducted by a manager who is biased
To be fair, the investigation has to be conducted in an unbiased manner. If the investigation is run by the manager who dislikes or favors the accused or the victim for personal reasons, that investigation is likely to be skewed and lead to unfair conclusions. An employer should consider having an investigation conducted by an impartial investigator or an attorney in order to make sure that the results of the investigation are actually useful.
Employees can use one of the above issues in workplace investigations in proving their discrimination or retaliation. For instance, consider a situation where an employee applies for FMLA or disability leave. Shortly after making that request, a complaint of harassment is submitted against him, and he is terminated without any investigation or after a very shallow and incomplete investigation takes place. The employee can later argue that along with timing of his termination relative to the medical leave request, the fact that the employer didn't bother to verify the accusations before terminating him further evidences that the real reason for termination is medical leave discrimination and not the harassment complaint.