Articles Posted in Disability at Workplace

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.
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.

Having been regularly representing registered nurses, nursing assistants and medical assistants who work for major hospitals and other healthcare facilities in California, including such groups as Kaiser, Stanford Hospitals, and Sutter Health, I see the same patter of work related injuries over and over. A nurse or an assistant is lifting a patient or moving a heavy object, causing an injury to his/her wrist or back, which often requires time of work, prolonged treatment and even a surgery. Some of those wrist/arm and back problems never go away and force the nurses to switch their jobs altogether.

As simple and as obvious as it might sound, strengthening the major groups of muscles in your back and arms/wrists by regularly working out, and just as importantly – having a brief stretching and warm up routine for the muscles and joints you use the most at work can take you a long way toward preventing those injuries. If, for instance, tennis players take their warm-up of their arms, legs and back so seriously in order to prevent injuries associated with sudden weight or impact, so should nurses and their staff do. While strengthening muscles and 5 – 10 minute warm-up before the shift will not guarantee an injury-free career, these simple steps will likely significantly reduce the frequency and gravity of the symptoms associated with pushing, pulling and lifting heavy objects.

Preventing or minimizing a risk of injury might require a degree of diligence and discipline from you, but it is surely a better option than dealing with the pain resulting from those injuries, and disability issues at workplace that may arise as a result.

It is not uncommon for a California employer to justify its termination of the disabled worker and it’s failure to engage in interactive process to find reasonable accommodations as require by law under the Fair Employment and Housing Act, by arguing that because the didn’t owe the duty to engage in interactive process because the terminated employee never requested it.

The California courts, however, routinely disagree with that argument by employers. Thus, the second district rejected such an argument by an employer, United Air Lines, where the company suggested that a disabled employee must first come forward and request a specific accommodation before the employer has a duty to investigate such an accommodation. The court reminded the employer that the law does not require the worker to speak any magic words before the disabled employee is subject to its protections. Of course, as the court continued to explain, the employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. The employer is also normally not liable for failing to accommodate a disability of which he had no knowledge. Finally, an employer has no duty to accommodate an employee who denies having a disability or denies a need for accommodation. Prillman v. United Air Lines, Inc. (1997).

However, the employer is likely to have the duty to engage in interactive process with a worker who the employer knows is disabled or who the employer perceives to be disabled.

The California Labor Code section 132(a) is yet another device prohibition discrimination against injured workers (in addition to California Fair Employment and Housing Act or “FEHA”). This section prohibits employer discrimination against an employee based on:

* Applying or intending to apply for workers’ compensation benefits; or

* Receiving a rating, award or settlement; or

Both ADA (Americans with Disabilities act) and its California counterpart – FEHA (Fair Employment and Housing Act) cover disabled employees as well as employees whom the employer has regarded or treated as having had any physical or mental disability or medical condition that makes achievement of a major life activity difficult.

California Government Code section 12940(m) requires covered employers to make reasonable accommodations for the known physical or mental disability of an employee, unless undue hardship on the employer’s business would result. Under section 12940(f)(2) states that an employer may require any examinations of inquiries so long as they are job related and consistent with business necessity to determine its employees’ health condition for the purpose of compliance with disability laws.

The FEHA’s requirement of reasonable accommodations is triggered when the employer becomes aware of an employee’s disability, which may occur because it is an obvious disability, the employee has disclosed the condition,or the employer has obtained a medical opinion through a fitness for duty examination. The three primary results of a medical examination are: (1) the employee is qualified to perform the job without the need for any accommodation and poses no safety risk; (2) the employee will be able to perform his job with a reasonable accommodation; or (3) the employee is not qualified to perform the job due to his condition or due to a safety risk, and there are no reasonable accommodations that would enable for that worker to perform the essential duties of his job.

FEHA (Fair Employment and Housing Act) prohibits disability discrimination and pregnancy based discrimination in California. To prove a wrongful termination claim based on pregnancy discrimination and failure to provide reasonable accommodations to a pregnant employee at workplace, first she has to prove that her condition constitutes disability within the meaning of the statute Cal. Gov. Code section 12940(m) which prohibits employment discrimination based on actual or perceived disability, as normal pregnancy itself is not considered disability entitling an employee to special accommodations.

san francisco pregnancy discrimination wrongful termination attorney

Under California Fair Employment and Housing Act (FEHA) physical disability is defined as a condition that limits a major life activity. Thus, the female worker must show that a condition arising out of her pregnancy limited one or more of her major life conditions. An employee must specific state which of her daily functions was impaired by the condition arising out of pregnancy and what exactly she was not able to do in a course of her daily life that she would have otherwise been able to do.

In one case, the court rejected the employee’s argument that her morning sickness during pregnancy constituted disability entitling her to the protection of pregnancy and disability discrimination laws. The court stated that according to Fair Employment and Housing Commission regulation 7291.2(g) a woman is “considered to be ‘disabled by pregnancy’ if she is suffering from severe ‘morning sickness’.”

Two critical aspects of proving (discriminatory) workplace retaliation for filing a workers compensation claim or engaging in other protected activity are: (1) proving causal relationship between the filing of the the workers compensation claim (or engaging in other protected activity) and the discriminatory actions by the employer; and (2) proving tat the employee was qualified and able to perform his or her job at the time when discrimination took place.

Careful investigation of the facts and circumstances of the employee’s employment and wrongful termination is essential. Obviously, with respect to establishing the causal relationship, the closer in proximity of time the discriminatory conduct is to the employer’s learning of the employee’s filing a workers compensation claim, the more likely the causal link will seem to the judge, jury, or an arbitrator.

The first very important component of proving retaliation is in disproving a possible legitimate reason for termination, the most common of which is poor performance. Thus, in a case of alleged retaliation, like in most other discrimination claims, an attorney should seek evidence such as the employee’s productivity and performance records, including all evaluations, commendations, promotions, raises, and any disciplinary measures.

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