Articles Posted in Disability at Workplace

legal protections for workers with cancerThe ADA and FEHA (Fair Employment and Housing Act) prohibit discrimination on the basis of an employee’s disability in all phases of employment process – from application, medical exams, hiring decisions, promotions, and of course terminations. Under ADA, disability is defined as a physical or mental impairment that substantially limits a major life activity. These activities include caring for oneself, walking, talking, breathing or working.

An employee may also qualify for disability protection under ADA if he is “regarded as” having an impairment. This protection is especially important for employees who have history of cancer but do not currently have an impairment that substantially limits a major life activity. Employers often incorrectly assume that an employee is unable to continue performing his job after being diagnosed with cancer even if that employee doesn’t (yet) have any limitations at that time.  “Regarded as” element of the ADA can be used to provide protections to employees with cancer who do not have a current disability within ADA definition, but still face discrimination based on their diagnosis.

In addition, the ADA Amendments Act (ADAAA) expanded the list of major life activities to include sleeping, concentrating, thinking, communicating, and the operation of major bodily functions. Employees who undergo cancer treatment often have issues with these activities. For instance, typical side effect of chemotherapy are inability to concentrate and memory issues. If these symptoms substantially limit an employee’s ability to think or concentrate, then the employee may have a disability under ADA.

disability leave mistakes under ADA FEHAThe most important advice we have for communicating with your employer during your disability leave is doing it in a way that would make it clear to them why and how long you will not be able to work for. While you, of course, have a certain right to medical privacy and confidentiality, the employer is entitled to know that information which is relevant to your limitations and to your request for disability leave under ADA / FEHA or medical leave.

Many employees, while on leave, make this common disability leave mistake of ignoring the employer’s letters that request additional medical information or clarification of previously provided medical notes. This is not a good idea, and this can often give the employer a legitimate reason to terminate an employee who would otherwise have all the protections that are otherwise available to disabled employees.

For instance, suppose you provide your employer some type of medical notes that states that you are sick and you won’t be able to work for 30 days. Your employer is puzzled and they want to know why exactly you wouldn’t be able to work. While they might not be entitled to know your exact diagnosis, they are entitled to know  the limitations that affect your ability to work or prevent you from working. For instance, if you need some type of surgery, the employer is not entitled to know what the surgery is, but they are entitled to know that you, for instance, won’t be able to move or walk for a certain period of time.

adhd disability ada fehaIn Weaving v City of Hillsboro, the Ninth Circuit Court of Appeal made an important distinction of when ADHD symptoms make it a qualifying disability under ADA and when they don’t. In dismissing the Weaving’s case, the court reiterated that as per the Court’s decision in McAlindin v City of San Diego – interacting with others is a major life activity within the meaning of ADA protections, while getting along with others is not. The Court noted that ADHD is a qualifying disability in those severe ADHD cases, where the condition renders the employee incapable or almost incapable of communicating with the outside world, such as in the case of recurring panic attacks or debilitating anxiety. Therefore, in these kinds of severe cases, the employee will be entitled to interactive process and reasonable accommodations within ADA as any other worker with a qualifying disability under the law.

On the other hand, being disciplined or terminated for simply not being able to get along with co-workers and management but otherwise being able to generally communicate with others in a reasonable, even if not perfect, manner, would not give rise to a disability discrimination claim.

angry-employeeA disgruntled employee who repeatedly threatened to shoot and kill his managers can’t sue his employer for disability discrimination even with a depression diagnosis, the Ninth Circuit ruled Tuesday. Timothy Mayo, a welder at PCC Structurals, told at least three of his co-workers that he wanted to bring a shotgun to work and “blow off” the heads of a supervisor and another manager, according to the three-judge panel’s opinion (9th Circuit).

The employee did not sound like he was joking. He went on to discuss the logistics of such an attack, explaining that he would plan to come to the office at 1:30 p.m. because “that’s when all the supervisors would have their walk-through.” Mayo’s co-workers reported the threats, and when the company’s human resources manager asked Mayo whether he actually planned to carry the threats out, Mayo said that “he couldn’t guarantee he wouldn’t do that,” according to the court’s decision.  The manager suspended Mayo, barred him from company property, and the company called the police. When a police officer visited Mayo at his home that night to discuss the threats, Mayo admitted to making them and mentioned the people he had in mind. He also admitted to owning several guns, though he had not decided which one to use, according to the opinion. When the officer asked Mayo if he planned to go to the company and shoot people, Mayo reportedly said, “Not tonight.” Mayo was then consensually hospitalized, where he remained in custody for six days before a psychologist cleared him to return to work because he was not a “violent person.” The psychologist did, however, recommend a new supervisor to be assigned to Mayo. Shortly afterward, PCC fired Mayo.

Mayo sued the company in state court, claiming that his firing violated the Americans with Disabilities Act because his threats were symptoms of his depression – a qualifying disability, according to the lawsuit.  The case was removed to Federal Court, which ruled that Mayo did not meet the ADA requirement of a “qualified individual” and dismissed the man’s suit. The court stated “an essential function of almost every job is the ability to appropriately handle stress and interact with others.” “And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his coworkers in chilling detail and on multiple occasions.”

stressed-out-workerGenerally, an employee who suffers from anxiety / stress depression as a result of working for a particular supervisor is not entitled to having a different manager as a reasonable accommodation to that disability. This is because inability to work with a specific supervisor is not a disability and does not require accommodation. See Byrnes v Lockheed-Martin (N.D. Cal. 2005).

Courts have routinely found claims of “selective disability” based on a desire not to work for certain people inadequate to demonstrate a limitation on the ability to work. Lancaster v County of Yolo (E.D. Cal. 2007). A disability is a part of someone and goes with her to her next job. A personality conflict, on the other hand, is specific to that individual. Palmer v Circuit Court, Social Serv. Dep’t. (N.D. ILL. 1995). The major life activity of working is not “substantially limited” if a plaintiff merely cannot work under a certain supervisor because of anxiety and stress related issues,  such as unfavorable review of job performance. Weiler v Household Finance Corp (1996). Claimant must allege that the particular disability limited a major life activity. Sandell v Taylor-Listug, Inc. (2010).

desk-job-adhd-workplace-disability-ada-fehaIn Weaving v City of Hillsboro, the Ninth Circuit Court of Appeal made an important distinction of when ADHD symptoms make the condition a qualifying disability under ADA, and when they don’t. In dismissing Weaving’s case, the court reiterated that as per the Court’s decision in McAlindin v City of San Diego – interacting with others is a major life activity within the meaning of ADA protections, while simply getting along with others isn’t.

The Court noted that ADHD is a qualifying disabilty in those severe ADHD cases, where the condition renders the employee incapable or almost incapable of communicating with the outside world, such as in the case of recurring panic attacks or debilitating anxiety that makes it impossible for an employee to interact (i.e. to even talk to his fellow employees or management). Therefore, in these kinds of severe cases, the employee will be considered disabled under the law and therefore entitled to interactive process and reasonable accommodations within ADA / FEHA.

On the other hand, being disciplined or terminated for simply not being able to get along with co-workers and management but otherwise being able to generally communicate with others in a reasonable, even if not perfect, manner, would not give rise to a disabilitly discrimination claim.

workplace-mental-disabilityRecently, the Fourth District Court has published its decision in Wills v. Superior Court – a very important opinion on workplace mental disabilities rights at workplace. That case addressed a  not uncommon situation, where an employee who has been diagnosed with mental disorder, such as bi-polar disorder, has been found to make threats of violence to his co-workers and management. After being fired for making those threats, that employee sued the employer for wrongful termination and disability discrimination.

The court’s analysis and holding was very practical and made a lot of sense. First, the court recognized the 9th Circuit cases that held that “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination” Gambini v. Total Renal Cares, Inc. (2007). Although the above cases considered disability-related misconduct, such as performance issues, tardiness or absenteeism, none of the above cases considered how to deal with disability-caused misconduct involving threats of violence against coworkers. The court concluded that neither ADA nor other laws require employers to retain employees who threatens or commits acts of violence against coworkers, even if the employee’s disability caused that kind of misconduct.

The court further interpreted FEHA (Fair Employment and Housing act) as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats of violence against coworkers. The court noted that if the employers are not permitted to do that, they are caught in a serious and unreasonable dilemma. On one hand they may not discriminated against disabled workers. On the other hand they are obligated to to provide all employees with a safe work environment, free from threats of violence (Cal. Lab. Code 6300). Certainly, disability rights have to yield to the workplace safety.

Some employers assume that just because their employee is on temporary but total disability, i.e. he is completely incapable of performing his job duties for a limited period of time, this means that the employee is not qualified to accommodations under ADA or FEHA (Fair Employment and Housing Act) and therefore can be terminated. This is often incorrect and can be basis for a wrongful termination claim.

It is well established that an employee who is temporarily disabled and who needs leave of absence to recover from his disability or medical condition may nevertheless be a qualified individual under ADA or FEHA and may be entitled to reasonable accommodations.

A reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment…if it is likely that at the end of the leave, the employee would be able to perform his or her duties. Hanson v Lucky Stores, Inc. (1999).

Requesting a reasonable accommodation to your disability is an important step to protecting your rights at workplace. Whether your disability or medical condition has developed over time (such as carpal tunnel syndrome) or resulted from an industrial accident, it’s important to keep several important things in mind to avoid the common mistake that other employees make when requesting an accommodation:

* The law does not expect the employer to read your mind and assume that you need an accommodation to your condition just because they might have learned that you are sick or have certain pain symptoms. Therefore, you should explicitly ask your employer for a “reasonable accommodation.” This is not the time to worry about your medical privacy and confidentiality. You should discuss your pain and the possible solutions that you and your management can work out together to ensure that you are able to continue working at your position or at some other position which is vacant and for which you are qualified.

carpal-tunnel.jpg* Make sure that you request an accommodation in writing. Send a fax or an e-mail to both your human resources department and your management to make sure that later the employer cannot say that you didn’t request to be accommodated.

One of the hallmarks and great advantages of California disability laws, which encompasses employers’ obligation to engage in interactive process to find reasonable accommodations to qualifying employees with a disability or a medical condition, is its flexibility. Generally, the employer must consider various solutions to accommodating an employee and be reasonable creative and considering different types of things that the company can do to help the disabled worker remain in the workforce.
work-from-home-disability-reasonable-accommodation
One of such accommodations, which can be particularly relevant in cases where an employee has a psychological/mental disability is working from home. In Humphrey v. Memorial Hospitals Association, the Ninth Circuit specifically noted that allowing an employee who suffered from OCD (obsessive compulsive disorder) to work from home can be one type of reasonable accommodation that should be considered if it may be effective and if performing that employee’s job duties from home would not impose undue hardship on the employer. In that case, the other fact that was helpful to plaintiff is demonstrating that some of her co-workers worked from home, while she was denied that accommodation, and that company had a policy of allowing employee to work from home.

Even though the employer argued that there was no guarantee that working from home would be an effective accommodation to claimant, the court was not persuaded, as one doctor’s testimony that working from home could have been effective was sufficient to trigger liability against the employer for failure to provide such an accommodation.