An employee who exercises his FMLA/CFRA or ADA/FEHA rights due to a qualifying disability or serious medical condition is considered to be in a "protected" class. This means that it is illegal for an employer to treat that employee differently because of his exercise the above workplace disability rights.   

Being "protected" does not mean, however, that an employee is protected from any employment action and enjoys some kind of immunity because of his FMLA or ADA status. For instance, when a lay-off takes place, and employee who is on FMLA or ADA leave is subject to lay-off just like any other employee. It would only be illegal to choose an employee for lay-off because of his FMLA /ADA status.   

The same applies to employment terminations. A disabled employee who engages in some kind of misconduct or violates an employer's policy can be lawfully terminated just like any other employee who never applied for FMLA leave or ADA/FEHA leave or other accommodations. Being in a "protected" class is not a shield against all harm. It's only a legal remedy against being treated differently because you are a member of that class. 

Below is an example of a potentially illegal and discriminatory AWOL notice that one of our clients has received. This document alone shows how the employer is trying to disregard the rights of an employee to (additional) medical leave as an accommodation. The employer - state agency - unfairly leverages the language of the applicable AWOL provisions to terminate an employee who is potentially entitled to a number of rights and protections under ADA and FEHA.

A Fresno recently awarded nearly $750,000 in damages to a former Farmers Insurance employee in an wrongful termination case based on age discrimination.

Both sides agree that plaintiff Warehime was hired to work in the Visalia office in January 2002. At the time, the company was going through a transition from paper files to electronic files. During the trial, Farmers' attorney told the jury that Warehime never embraced the new technology and rejected training to become a better employee. When workload backed up on her, he said Warehime "blamed others for her problems."
The employer's attorney further said Farmers had good reason to terminate Warehime:  she was low-balling customers on their claims, which led to costly litigation for the company.

Toole, Warehime's attorney,  showed the jury evidence that Warehime had been a valued Farmers employee: she did the training requested by Farmers and the company honored her with awards and good to outstanding job-performance ratings each year from 2002 to 2005. "She was a committed team player and good with customer service," he told the jury. Toole said the climate began to change in the summer of 2003 when Warehime learned that one of her Fresno supervisors "wanted to hire his own people." Warehime was given higher caseloads than other employees, and when an employee left the company, she was given those files, too, Toole said. She asked her supervisor to balance the workload, "but nothing happened. No files were reassigned and she continued to drown in these files," Toole told the jury.

Things got worse for her, Toole said, because the Fresno office was filled with young, hip employees, Toole said. Warehime started hearing thing like: "I don't want to work when I'm your age" and "The old fuddy-duddy is coming in." In October 2005, Plaintiff complained to her supervisor that an evaluation of her work was inaccurate and unfair. The supervisor responded by telling her to improve her performance.

The stress became so intense, Warehime suffered a mental breakdown in February 2006, forcing her to take a leave of absence while her doctor treated her from depression and anxiety. Warehime's doctor cleared her to return to work on June 12, 2006. But when she showed up to work, a young man was sitting at her desk, and Plaintiff soon found out that she was fired.

This case involves a common combination of age discrimination and disability discrimination / failure to honor medical leave to which an employee is entitled under ADA/FEHA or FMLA.

Below is an example of an actual medical note which is likely insufficient in order to put the employer on proper notice of you need for medical leave under FMLA, CFRA, ADA or FEHA. There are two main issues with this medical note:

First, even though it states that the employee has "several medical condition", it doesn't identify any such conditions. It would be helpful to the employer if the doctor who wrote this note was a little more specific about the nature of his patient's condition and the resulting limitations.

The second issue that it doesn't firmly excuse the employee from work for certain dates. "... prevent her from appearing" is not the same as "unable to report to work between (date) and (date).

You should not hesitate to review or have an attorney review the medical note you receive from your doctor, which you plan to transmit to your employer in order to have your medical leave approved, in order to make sure that it is sufficiently specific and complete.

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.