One of the actions that employers sometimes take, that potentially can be a serious violation of California and Federal disabilities laws, is cancelling a disabled worker's existing accommodation that has been in place for some time and allowed that employee to perform his job well. This tends to happen more often when a new manager comes on board, who is eager to make significant changes in the office, some of which could be good while others - not so good.  

Whether an employer's revokation of an existing accommodation is lawful depends on a number of factors, including the specific reasons behind that action, whether alternative, effective accommodations are available and are actually offered to the employee in question and whether there is some change in the employer's operation or the employee's medical status that would justify this change. Each situation must be evaluated individually in light of its unique circumstances to determine whether (a) a compromise between the employer's new goals and the employee's needs can be reach, and if not (b) whether there is sufficient evidence to puruse a disability discrimination case against that employer. 

In these types of situations both sides should consider avoiding impulsive decisions as such termination of that employee or quitting the job by that employee. Instead, the parties should first explore the issue and see if they can reach some kind of compromise that works for both the employee who needs and accommodating and that employer. 

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. 

Here are top three most common mistakes that we see employees make over and over when requesting medical leave under FMLA  / CFRA or disability leave under ADA / FEHA:     

1. Refusing to provide clarification to previously provide medical leave note upon employer's request. Your employer might not be clear about the reasons for you inability to report to work and could ask you to go back to your doctor and get clarification in a form of additional medical note. Many employees immediately reject that type of request on the grounds of medical confidentiality and privacy. In many cases, this is a mistake and a fight simply not worth fighting. Your employer is entitled to have basic information about the reasons for your inability to report to work. While they may not be entitled to see your medical records or know your exact diagnosis, at they have the right know what physical limitations prevent you from working. Employee often insist on not providing this information and end up getting fired where it was so easy to avoid by simply giving the employer what they need, assuming that their request is reasonable.  

2. Proving a medical leave note that directly or implicitly suggests that the duration of the needed leave is unclear.  Under the law, an employer doesn't have to provide leave of indefinite duration, and in most cases an employer can safely terminate an employee, where it looks like that employee might not ever come back to work. Therefore, if you intent to return to work, you should make sure that you medical note has your date of return to work with or without restriction, or at least an anticipated date of return, even if you / your doctor is not 100% sure that you will be able to start working again on that day.. Later, you may have the option to extend your leave. You should not rely on your doctor to write your medical leave note the right way, and you should definitely read it yourself before passing it to your employer.  You cannot expect your doctor to know your legal rights. Your doctor's specialty is medicine; not disability laws. 

3. Being tough and trying to work through pain. In the video below, I talk about how being tough and trying to work through pain can lead to problems at work: 

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. 

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. 

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. 

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.