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 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.
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.
When Your FMLA Leave Expires
Many employees suffering from a disability or a particular medical condition qualify for FMLA leave, under which they are entitled to be placed on unpaid leave for up to 12 weeks in a year, assuming that certain FMLA conditions are satisfied.