Both employees and employers should know that often a QME report of an injured worker who has been out on a workers comp medical leave, doesn't tell the whole story about that employee's ability to return to work. Therefore, other sources of information about the employee's medical condition and ability to work must be taken into account. 

For instance, if a QME report is not clear about an employee's ability to perform his job duties, seek clarification from the QME doctor or from another doctor, such as that employee's primary care physician. A typical misunderstanding arises when an employer, who receives a QME report that states that the employee cannot bend and kneel, assumes that the same employee is in such a bad shape that he is completely unable to work, and therefore can be terminated. This is obviously not true if the employee's job duties do not require much or any kneeling or bending. This type of unfrounded assumption based on an incorrect reading of QME can be the cause of wrongful terminating a worker and violating his disability rights.

As Eastern District Court of California recently observed in one of their court rulings "an employer's blind adherence to the QME report ignores substantial evidence to the contrary".  The court held that evidence of an employee's ability to continue performing his job duties despite his ambiguous QME, his other doctors opinions about his ability to perform his typical job duties, and the employee's own testimony about the fact that he can handle his work just fine must be taken into account when making a determination regarding that worker's return to work.  The court asked a number of questions in its opinion which reflect on the mistakes made by the employer in that case: "The obvious question becomes why Defendant rushed to judgment on the basis
of an equivocal statement by a workers’ compensation evaluator10 that was contradicted not only by Plaintiff’s own treating providers but by Plaintiff’s own demonstrated ability to do the job. Why did Defendant terminate Plaintiff without any further inquiry, without talking to Plaintiff himself about whether he could do the job, and after only a small number of relatively short phone calls?" - These types of questions should serve as an important reminder to employers about how to correctly assess an injured worker's ability to return work, but looking at the whole picture, rather than only some evidence of an employee's medical condition. 

The California Supreme Court held that obesity may qualify as a protected disability within the meaning of FEHA (Fair Employment and Housing Act), if medical evidence demonstrates that (1) it results from a physiological condition affecting one or more of the basic bodily systems and (2) limits a major life activity. Cassista v Community Foods, Inc. (1993).  "Physiological" means "relating to the functioning of living organisms" and includes genetics, i.e. genetic reasons for obesity. 

In a recent, very interesting employment discrimination case holding - Castro Ramirez v Dependable Highway Express, Inc. (2016), the Second Appellate District clarified the employers' obligation to provide reasonable accommodations to employees in the associational disability context - i.e. where the employee who is not disabled is seeking an accommodation for a physical disability of another person with whom he is "associated" as per California Gov. Code section 12926. The court noted that an association with a psychically disabled person is itself a disability under the California FEHA.

Thus, when Gov Code section 12940(m) says that employers must reasonably accommodate "the known physical... disability of an applicant or employee," the disability that employers must accommodate include the employee's association with a physically disabled person.  The court further pointed out that FEHA (Fair Employment and Housing Act) creates an associational disability discrimination claim by reading "association with a physically disabled person" into the Act where "physical disability" appears in section 12940(a). 

Finally, the court pointed out that this is yet another way in which California FEHA provides a much broader anti-discrimination protection to employees than its federal counterpart  - ADA.  This law and clarification provides significant protection to employees who parents, children, or other closely associated persons/relatives are disabled and require some kind of significant attention from that employee. 

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.

One of the issues that an employees of Stanford University may face is requesting and receiving  reasonable
accommodations to their injury or their disability. Stanford management and human resources department at  times seem to miss the fact that an employee's workers compensation claim and request for an
accommodation, such as medical leave, modified duties, assisting devices, etc... are different types of issues and should be handled separately. 

For instance, just because an employee's workers compensation doctor states that the injured employee is unable to work, doesn't mean that it relieves the employer of the obligation to accommodate that employee as per his/her disability rights under FEHA and do what is reasonably possible to allow that employee to return to work to the same or similar, vacant position, for which that emloyee is qualified. If you are in a similar situation, and you want to retain your employment with Stanford, it is very important that you communicate with both the management and your HR department that you are able and willing to return to work at a certain date, and that you would like to talk to someone about possible accommodations to your medical condition.  

Some managers are known for being annoyed by the employees who file workers compensation claims, especially if they file more than one claim over a period of time. These managers often think that just because one employee seems to be faking his or her injury or exaggerating the symptoms, it means that all the other employees do the same. Thus, these managers start viewing all claims with an unfounded skepticism, which is one common source of disability discrimination - treating employees differently because of their disability and/or medical condition and refusing to accommodate them.

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. 

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.