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. 

Despite the fact that there has been no legal requirement for any employers in California to impose Covid-19 vaccine mandates on their workers, many employers choose to continue demanding that their employees are fully vaccinated.  It is most surprising that even fully remote employees are expected to be vaccinated by many private and public employers, and these same workers are routinely denied requests for a religious exemption from this requirement. It is hard to imagine how an employer could justify insisting on compliance with their vaccination rules with respect to those workers, who never come in contact with their co-workers or company clients / customers.   

We have already filed several lawsuits to challenge this highly unethical practice that leads to good workers losing their jobs and having their careers and livelihood derailed for no good reason , and this lawsuit against the City and County of San Francisco being one of the more recent ones.  We look forward to seeing how these cases turn out in court. 

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. 

California employers that have a policy of requiring their employees to wear a mask at workplace due to Covid-19 should be aware that some of their employee may be entitled to a reasonable accommodation with respect to that policy under ADA and California FEHA (Fair Employment and Housing Act). These accommodations may typically include: (1) wearing a special mask to address any breathing or allergy issues associated with wearing a typical masks; or (2) allowing an employee to work remotely instead of working masked in the office.

As an employee who has a difficulty wearing a mask at workplace, especially if you are required to do so all day, you may be entitled to a reasonable accommodation under ADA or California FEHA. This is especially true if you suffer from acute asthma and associated difficulty breathing.  The first step in this accommodation process should usually be approaching the employer and candidly discussing your difficulty working with a mask on and discussing possible solutions that could work for both sides.  Like with other types of medical conditions and accommodations, this dialogue may require individualized assessment of the employer's needs and risks vs your challenges of being able to perform your job duties without having difficult breathing and/or aggravating your pre-existing respiratory illness. 

I suspect that even when Covid-19 will be considered fully behind us, may workplaces will still require their employee to wear masks out of abundance of caution, so this issue is likely to be relevant for many years to come. 

If you are planning to request religious exemption from the Covid vaccination requirement at your workplace, keep in mind the following two practical tips: 

1. Make Sure Your Activity Online And In Real Life Is Not Inconsistent With Your Exemption Request
Under Title VII, your employer only has to consider accommodating a "sincerely held" religious belief. While generally, pretty much any belief is presumed to b sincere, if your behavior or actions suggest that your claimed belief is not sincere, then your employer can lawfully deny your exemption request. For instance, let's say that you talk with your co-workers and/or on social media about how you don't believe in any religion at all and how you are convinced that God doesn't exist, etc... If your employer becomes aware of those claims, they will have legitimate reasons to doubt the sincerety of the religion that forms the basis for your exemption request.   

Likewise, you should avoid making it sound like the reason you do not want to get vaccinated is because you doubt the safety or effiacy of vaccines, or for any other political / scientific reason. While you may or may not be right about anything relating to Covid-19 vaccines, these types of claims will, again, call into question the real reason for your exemption request. Remember - your employer doesn't have a legal obligation to consider granting you exemption from vaccination requirement based on how you feel about vaccines, what you learned about them from various soources, and how much or how little you trust the "system". They only have to accommodate your religious belief. 

2. Be Flexible In Your Discussions Re Accommodating Your Religious Exemption Request  
Like in any other type of negotiation, you should be ready to be flexible when discussing the exemption issue wtih your employer. It is perfectly appropriate to negotiate an accommodation solution that, while might not be perfect, is acceptable to both you and your employer. For instance, if your employer grants you exemption based on your religiou but they require you to get tested every week, you could ask for less frequent testing of perhaps every two weeks. In the end, you may agree on getting tested every 10 days, which will save you from one extra test a month.  Your employer might insist that if you are unable to get vaccinated, you have to work 100% remotely, while you may want to do some work form the office. One simple solution to this issue could be allowing you to be in the office during hgorus when everyone else is away, or designating a separate area in the office for you that will allow you to mihimize unnecessary contact with others. In any event, neither side should approach the accommodions process as "it's either my way or no way".  Further, any accoommodation agreed upon can be reviewed and re-evaluted as time goes by and as all the surrounding circumstances evolve. 

Whether your employer will or will not grant your exemption request will depend on other factors, including their general approach and flexibility when it comes to this issue, but keeping the above two factors in mind will go a long way toward making sure that you take the right steps on your end of that process. 

In what is sure to be a closely watched case, the EEOC recently filed its first ADA pandemic-related lawsuit relating to COVID-19 and an employee’s request to work from home. The EEOC claims that ISS Facility Services, Inc., a workplace experience and facility management company, unlawfully denied an employee’s reasonable request for an accommodation for her disability and then fired her because of her disability and in retaliation for requesting an accommodation. 

According to the lawsuit, the employee, who has chronic obstructive lung disease and other physical impairments, worked as a Health, Safety & Environmental Quality Manager at a company facility. Beginning in March 2020 and through June 1, 2020, the Company required all of its employees to work remotely four days per week due to the COVID-19. Beginning June 1, 2020, the Company required all employees to return to working five days per week. The employee then requested an accommodation to work from home two days per week and to take frequent breaks while working onsite due to her pulmonary condition, which made her high-risk for contracting COVID-19. Although the Company allowed others in the same position to work from home, it denied the employee’s request and, shortly thereafter, fired her.  

Generally, an employer is not required to provide an employee with the specific accommodation requested, but may offer alternative accommodations, so long as the accommodation provided is effective, which should be discussed during the ADA interactive process to determine whether there are alternatives to, for example, working from home, e.g., proper social distancing. Unless a job indisputably cannot be performed at home, employers should engage in the the interactive process to determine whether working from home is a reasonable accommodation that does not pose undue hardship on the operations, and whether any alternative accommodations would be effective.  

The COVID-19 pandemic has already demonstrated in many instances that certain positions not previously seen as remote positions can be effectively performed at home, creating a renewed focus on and need to reassess the reasonableness of such requests for an accommodation. 

An empoyee who prevails in a wrongful terminaton case, based on discrimination, retaliation or harassment claim, is entitled to recover unvested stock options among other damages. Scully v. US WATS, Inc. (3d Cir. 2001) 238 F.3d 497. Just like lost future salary, the value of stock can be considered compensation that the employee would have received in the future, had he not been illegally fired. Having a schedule of vesting is of course helpful in calculating that part of employee's damages. The California Supreme Court also recognized that stock awards are considered wages under California law. Schachter v. Citigroup (2009) 47 Cal. 4th 610, 619.     

Courts have developed methods for assigning value to stock in both employment cases as well as business disputes. Valuation methods include using the stock's highest market value within a reasonable period or valuing the stock on the date of the breach of the obligation or wrongful termination. Some courts take a combined approach, basing the value of the equity as the market price of the shares on the date the employee tried to exercise their shares. In other cases, the courts have denied employees' lost equity beause it was too speculative, where, for instance, the date of potential sale of a stock that never took place is virtually impossible to determine. Jaros v. LodgeNet Entm’t Corp. 294 F.3d 960 (8th Cir. 2002).

In some cases, an employer can be ordered by court to issue equity due. This particularly applies to closely held corporations that issue their employees equity of value that cannot be ascertained and where the stock is not publicly traded. Kramer v. Puracyp, Inc. (Cal. Ct. App. Mar. 17, 2017) 

In disovery, it is important to seek information from the employer regarding the valuation of the company, including any 409A valuations conducted by the company, and valuation of the company provided for insvestors.  If a court is unable to determine the value of the stock, the law provides the alternative of specific performance. This is particularly appropriate where the company's stock is not publicly traded. 

Let's say you work at a company, where the employer ends up not paying you correctly and owing you a significant amount of money. Should you necessarily quit that job as soon as possible? 
- In some cases, for strategic reasons it's better not to quit or at least not to quit that job right away. Instead, you should consider filing a wage claim or a lawsuit for unpaid wages. In the likely event that your employer retaliates against you for filing that case by firing you, you may also have a retaliation and wrongful termination case against that employer. This will provide you with additional leverage to negotiate a more favorable settlement or do better at trial if your case goes that far. On the other hand, if you quit, you will obviously not have any type of wrongful termination case, because no termination took place.   

Of course, your decision whether to quit and when depends on other factors, including whether you can actually tolerating staying there, whether you have a pending job offer elsewhere that you don't want to miss, and other persona, practical circumstances. 
An experienced employment attorney can help you make the right decision in your situation, but considering the legal aspects as well as practical aspects of your situation to decide whether you should resign from your employment, and if so - how to make the time of resignation most advantageous to you.     
If you are facing this type of dilemma, contact us to discuss and evaluate in detail your situation.