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Job Reassignment As a Disability Accommodation under ADA / FEHA

job-reassignment-as-disability-accommodation
Suppose you are placed on disability leave by your physician because of an serious illness, which qualifies as a disability under ADA or FEHA, or an injury (whether work related or not). Your leave lasts for several months or longer. At some point you obtain a note from your doctor allowing you to return to work with or without restrictions. You then find out that the employer filled your position while you were out, because they couldn't afford waiting for you for the entire time you were absent. The employer then encourages you to apply for the posted vacant jobs, for which you arguably qualify, like anyone else would, and see if you could get rehired back.  You submits a number of applications, but you are not accepted to any of the jobs and the employer terminates you. 

Is this legal?  -  In most cases it isn't, and this is one of the large companies typical tricks to try to make a discriminatory termination look like a more innocent separation, where they claim that they tried to find a position for you but weren't able to. 

Luckily, the California disability laws and prior court decisions provide guidance in these kinds of situations. The law imposes liability on the employers for these kinds of terminations. A number of courts have held that job reassignment obligation to a disabled worker means more than treating that employee as any other job applicant. While the employer isn't obligated to create a new job for an employee returning from disability leave, promote a disabled employee, or violate another employee's union rights, the employer still has tot take affirmative action to accommodate. This generally means providing preferential reassignment rights to existing disabled employees over other equal or comparable candidates, instead of throwing them into a pool of all the other candidates, who are not current employees of that company.   

In a wrongful termination cases arising out of failure to reassign an employee returning from disability leave, the employee will have to introduce some evidence that vacant position for which he qualified existed at the time of his return to work and/or termination. It certainly helps make a stronger case if the employee actually applied for a number of jobs and was rejected. In large corporations, this should not be difficult, as they regularly post job vacancies. Even their website printouts of job postings can be evidence of an opportunity to accommodate and reassign and employee, which wasn't handled correctly.  The case of Spitzer v The Good Guys (2000) provides a lot of useful information on the reassignment rights under California disability laws. 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case