San Francisco Employment Law Firm Blog

The protections afforded to employee under the Federal and State disability laws are quite expansive and go far beyond protecting just those employee who have a "disability" the way an ordinary person would understand the term, such as being handicapped, or having suffered from a major traumatic injury. The US Supreme Court case School of Board of Nassau County, Florida, v. Arline, 481 U.S. 1024 (1987) is an illustration of this broad application of the disability laws at workplace. In that case, a school teacher was fired from her job solely because of her susceptibility to tuberculosis. The school argued that in removing the teacher from her position, they were protecting the safety of others by preventing the teacher from infecting students and administration with the contagious effects of tuberculosis during a possible relapse. However, the Supreme Court was not persuaded, noting that allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of section 504 (Rehabilitation Act) which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or ignorance of others. The fact that some persons who have contagious disease may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence. Rather, they would be vulnerable to discrimination on the basis of mythology - precisely the type of injury Congress sought to prevent.

The Court further agreed American Medical Association that to determine whether the Plaintiff was otherwise qualified for her position, an individualized inquiry should have been made, which was to include "findings of fact, based on reasonable medical judgments given the state of medical knowledge about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious", (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm."

In Doe v Lincoln Unified School District, the Third District extensively discusses the rights of California certificated employees within California Education Section 44942, which provides a summary procedure for suspending or transferring to other duties a certificated school employee where there is reasonable cause to believe the employee "is suffering from mental illness of such a degree as to render him or her incompetent to perform his/her duties." Upon suspension or transfer under the section, the governing board of the school district must provide the employee with "a written statement of the facts giving rise to the board's belief, and an opportunity to appear before the board within 10 days to explain or refute the charges." If, after such appearance, the board decides to continue the suspension, of if the employee does not appear, the employee is given an opportunity to be examined by a panel of three psychiatrists or psychologists selected by the employee from a list provided by the board.

The panel's examination shall be at the school district's expense and must take place within 15 days of the suspension or transfer. A written report must be submitted by the panel to the board within 10 days and shall contain a finding as to "whether the employee is suffering from mental illness of such a degree as to render him/her incompetent to perform his/her duties." During this process, the employee shall continue to receive his regular salary and all other benefits of employment.

If the panel concludes the employee should be permitted to return to his prior duties, the board must reinstate the employee to his position and expunge from the employee's personnel file all references to the suspension and the panel's determination. If, on the other hand, the panel determines that employee is suffering from a mental illness sufficient to render him incompetent to perform his duties, the board may place the employee on mandatory sick lave for a period not to exceed two years.

An employee placed on mandatory sick leave may immediately demand a hearing. If a hearing is demanded, the board must file a complaint in the superior court setting forth the charges against the employee and asking the court to determine if the charges are true and, if so, whether the constitute grounds for placing the employee on mandatory sick leave. If the court finds the employee was not incompetent to perform his duties at the time of the suspension and should not have been placed on mandatory sick leave, the employee must be reinstated to the same or a substantially similar position with full back salary, and any record of the suspension and the panel's report must be destroyed.

If the court instead finds the employee was properly placed on mandatory sick leave, or if the employee fails to demand a hearing, the employee may, between six months and two years after being placed on mandatory sick leave, request a new panel of psychiatrists or psychologist to review the original conclusion. If the new panel concludes the employee should be permitted to return to work, the board must take immediate action to restore the employee to the position from which he was suspended or transferred, or to a substantially similar position.

Once the employee's total period of absence exceeds two years, the board must either rescind its action and reinstate the employee or serve the employee with a notice of intention to dismiss.