Job Reassignment As a Disability Accommodation under ADA / FEHA
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.
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.