Disability Claims

14 Sep 2014
Sticky Post By Posted in Sick Leave Permalink

Sick Leave and Time Off Work

Sticky Post By On September 14, 2014

California recently became the second state in the US to require sick leave for employees. If you work for at least thirty days in a calendar year, you are entitled to at least 24 hours, or three paid sick days per year. The only other state to offer similar protections, Connecticut, allows employees to accrue up to forty hours of sick leave. Flight attendants, in home care workers, and workers subject to a collective bargaining agreement are exempt from California’s sick leave law.

California is seven years behind San Francisco, which enacted a mandatory sick leave ordinance in 2007. San Francisco employers who employ at least 10 workers must provide a maximum of 72 hours of paid sick leave to their employees. Employers of less than 10 workers must provide up to 40 hours. Interestingly, San Francisco’s sick leave ordinance not only provides more sick leave, but there is no annual cap. In other words if you have 40 hours of sick leave “in the bank” and you use 8, you begin accruing it as soon as you return to work.

Unpaid Time Off as a Reasonable Accommodation

While three days might not seem like a lot, it sure is better than zero. In the dark ages before paid sick leave, i.e. California circa August 2014, only unpaid time off from work to recover from an illness, injury, or disability was legally protected. Under the Fair Employment and Housing Act (FEHA), the Americans with Disabilities Act (ADA), the California Family Rights Act (CFRA), and the Family Medical Leave Act (FMLA), while you are entitled to medical leave, none of these statutes require paid leave.  Furthermore, a cold or a flu or some other minor sickness might not actually qualify under some or all of these statutes due to these laws’ definitions of “disability.”

Nonetheless, these laws are all still important and relied upon by millions of workers. The interplay of these laws is sometimes confusing. Below are some of the key differences of these laws.

FEHA/ADA leave

  • Applies to any employer who employs five or more employees (FEHA) or 15 (ADA).
  • Protected time-off is open ended. Employees are entitled to time off as a reasonable accommodation to the extent that the time off does not cause an “undue hardship” on the employee.
  • Any physical, mental, or medical condition that limits a major life activity, including working, is covered as a disability.
  • No leave for family members or dependents; protections only apply to the employee.
  • No minimum amount of service time required before employee is eligible. Applies to all employees and even job applicants.

CFRA/FMLA leave

  • Applies to employers with 50 employees or more within 75 miles of the affected employee.
  • Limited to 12 weeks of leave.
  • Allows leave for any “serious health condition.” Pregnancy specifically included.
  • Leave is available for both employee’s own condition as well as time off to care for sick family members.
  • Employees must be employed for a minimum amount of time before protections kick in.

These statutes can operate concurrently. For example, an employee can be on “FMLA” approved leave, but require more than the statutorily guaranteed 12 weeks of leave.  Just because the FMLA leave is over, this does not mean the employer can terminate the employee for failing to return to work. The employer and the employee still need to determine how much additional leave the worker can have, and whether any additional leave constitutes an undue hardship on the employer. Employers frequently make the costly mistake of terminating an employee that does not return at the end of their 12 week leave due to inflexible FMLA leave policies. This can be a costly mistake. If this happened to you, or if you have any sick leave or time off issues at work (or are anticipating them) give me a call or send me an email. 

14 Sep 2014
Sticky Post By Posted in Pre-Employment Testing Permalink

Pre-employment Testing

Sticky Post By On September 14, 2014

You’ve just aced a job interview for a major Fortune 100 employer. Congratulations! Now all you have to do is complete a 3 hour written math exam. OK, no problem. You’re great at math. One problem: you have limited use of your hands and cannot grip a pencil. You inform your test proctors of your need for testing accommodations before the exam. On test day, your proctors insist that you use a pencil and refuse your request to use a computer to complete the exam, or to provide additional time, even though you told them about your disability well in advance. Since the test is timed, and since you can only use a pen or pencil with great difficulty, you cannot complete the exam in the allotted time. You wind up not getting a job you were exceedingly well qualified for.

Disability discrimination? You bet. Under California law, employers have to accommodate known disabilities in pre-employment testing so that all applicants have a level playing field. It is illegal to refuse to hire someone due to a disability, just like it is illegal to fire them.

Medical tests after a job offer is extended are legal if they are generalized and not designed to screen new hires for specific conditions. Similarly, pre-employment testing that is general in nature and not designed to screen disabled applicants is also usually legal. If you have are about to take a test you are concerned with, or you think your disability is the reason you were denied a job, I would like to talk to you.

14 Sep 2014
Sticky Post By Posted in Failure to Reasonably Accommodate Permalink

Failure to Reasonably Accommodate a Disability

Sticky Post By On September 14, 2014

Under both the FEHA and the ADA, an employer is obligated to try and accommodate a disabled employee. “Reasonable accommodations” include things like making existing facilities usable by individuals with disabilities, job restructuring, part time or modified work schedules, reassignment to a vacant position, providing employees with ergonomic devices, speech to text software, time off to recover, and so on. Employers and employees are encouraged to get creative. The employer is not required to pick the accommodation preferred by the employee, nor is the employer required to undertake anything that would constitute an “undue hardship.”

The first step in figuring out whether your employer can reasonably accommodate you is figuring out the “essential functions” of your job. This is an important legal term that you will hear a lot if you pursue a failure to accommodate or failure to engage in the interactive process claim. The critical legal question in your failure to accommodate case is whether you can perform the essential functions of your position, with or without an accommodation. You do not need to perform them immediately, since time off to recover is often a perfectly reasonable accommodation. Nor should you accept an unreasonable characterization of the essential functions of your job beyond those you see on a daily basis.  Department of Fair Employment and Housing (DFEH) Guidelines provide the following guidance for determining the essential functions of the position:

When determining whether a job function is essential, the following should be taken into consideration: (1) the position exists to perform that function; (2) there are a limited number of employees available to whom the job function can be distributed; or (3) the function is highly specialized. Evidence of whether a particular function is essential includes the employer’s judgment as to which functions are essential; a written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; the terms of a collective bargaining agreement; the work experiences of past incumbents in
the job; or the current work experience of incumbents in similar jobs.

The employee is typically not involved in the process of determining the essential function. (I had one particularly egregious case where the employer tried to make the employee agree in writing to changed essential functions for the position while the employee was disabled.)  Usually this is predetermined (or at least, employers claim it is) and the issue is one of many that gets litigated in disability discrimination and wrongful termination cases.

The next step is figuring out your reasonable accommodation. This is a case by case process that should occur during the interactive process, and ideally the employee is as involved in this process as the employer. Time off, assistive technology, or even a simple solution like providing an assembly line worker a chair are all things that can be considered.

I sometimes come across employers who tell employees they do not do certain things for employees as a “policy.” This is a mistake. The process of determining whether you can be reasonably accommodated has to be an individualized process. That means there is no cookie cutter approach. Your specific situation needs to be considered.

If you think you have not been reasonably accommodated, or you are in the midst of requesting a reasonable accommodation and need some help, contact me. 

 

13 Sep 2014
Sticky Post By Posted in Failure to Engage in the Interactive Process Permalink

Failure to Engage in the Interactive Process

Sticky Post By On September 13, 2014

If you are a disabled worker, one of the first things you and your employer need to do is engage in the interactive process. This is a good faith dialogue between worker and employer about the employee’s disability. The goal of this statutorily mandated conversation is determining whether the employee can perform the essential functions of their job with or without an accommodation. In other words, can you and your employer figure out a way for you to either keep working, or just keep your job, with your present physical or mental condition. This is an ongoing responsibility. If an employee is accommodated but subsequently has a change in his or her circumstances, the interactive process should continue.

As simple as the above sounds, this claim pops up in almost every disability discrimination action. A frequent source of disability claims arise from situations where the employer either simply decides an employee’s fate without their input, or just ignores an employee or their doctor’s input. Sometimes, an overly bureaucratic layer creates mistakes that lead to an inadequate resolution, or outright dismissal of an otherwise qualified employee. All of these situations encompass a failure to engage in the interactive process.

Currently, there is a debate in the courts as to whether an employer is liable for failure to engage in the interactive process if there was no actual accommodation possible. For instance, if an employee suffers from a severely debilitating condition that would permanently limit his ability to perform a certain job, is the employer liable for simply firing the employee without even attempting to investigate if any accommodation was possible?

This is a constantly evolving area of the law that I have litigated many times. Contact me if you are either thinking about beginning this process, are in the midst of it, or have gone through it already and something has gone wrong. The earlier you get advice, the better.

13 Sep 2014
Sticky Post By Posted in Disability Claims, Disability Discrimination Permalink

Disability Discrimination Claims

Sticky Post By On September 13, 2014

In the employment law context, most disability discrimination claims are covered by the Fair Employment and Housing Act, commonly called the “FEHA.” The FEHA applies to any employer with five or more employees. Among many other protections, the FEHA protects the employment rights of disabled workers. The Federal equivalent is the Americans with Disabilities Act, or the “ADA.”  Both acts cover similar rights, but as usual, California law is generally more protective and favorable to employees, with a few limited exceptions.

Under the FEHA, “disability” is a broader term than its common usage in everyday conversation. A disability can be physical, mental, or a genetic characteristic. There are also specific medical conditions defined in the law, such as cancer, that automatically qualify.

  • A physical disability is any physical disease, disorder, condition, cosmetic disfigurement, or anatomical loss that limits a major life activity, such as working.  This can range from a sprained ankle, to carpal tunnel syndrome, to loss of limbs.
  • A mental disability is any mental or psychological disorder or condition that limits a major life activity, such as working. This can range from a learning disability, to bipolar disorder, to depression.
  • If an employer thinks an employee is disabled and discriminates against that employee, the employer is still liable even if the employer was mistaken in believing the employee was disabled.    

Almost any physical or mental impairment is protected as a disability if it makes your work more difficult. Once an employer knows an employee is disabled, the employer is required to engage in the “interactive process” in an effort to “reasonably accommodate” the employee’s disability. In plain English, the process should work like this:

  1. Your employer learns about your disability and how your ability to work is affected or restricted.
  2. You and your employer, and possibly your doctor, discuss how you can continue to do your work with your disability. Common solutions include time off to recover, switching or limiting duties temporarily, ergonomic devices, speech to text software, and a variety of other common and cost-effective solutions.
  3. You eventually recover, or continue working with your accommodations. Or, after an honest and good faith interactive process with your employer, it is determined that your disability is so severe that your employer cannot accommodate you.

Unless accommodating the disability constitutes an “undue hardship” on the employer’s business, the employee must be accommodated. Click on the hyperlinks above to read more about each step in the process.

 

 

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