Articles Posted in Disability at Workplace

It is not uncommon for an employer to terminate an employee because of his or her disability in violation of FEHA and other anti-discrimination laws, and attempt to mask disability discrimination and failure to provide reasonable accommodations by telling an employee while terminating him that he can apply for other jobs in the company that might suit him. This move seems to be particularly obvious when the employer tells the employee that he should apply for any job externally, like any other outside applicant, not having any priority in hiring or consideration for any position.

The California courts are unimpressed with this move to go around the law protecting disabled workers. The Ninth Circuit specifically held in Barnett v. U.S. Air. Inc. (9th Cir. 2000) 228 F.3d 1105 that an offer to bid on other jobs, “a right the employee already had,” did not represent reasonable accommodations as required by law. Reassignment involves more than a mere opportunity for disabled employees to compete. Quoting EEOC guidelines, the court concluded that reassignment within the meaning of reasonable accommodations means that the employee gets the vacant position if he/she is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congresses intended it when it enacted disability anti-discrimination laws.

The California Supreme Court held that high blood pressure (hypertension) may be a protected disability at workplace within the meaning of Fair Employment and Housing Act (FEHA) in American National Insurance Co. v. Fair Employment and Housing Commission 32 Cal.3d 603 (1982). In that case, an insurance company terminated a sale and debit agent because of his elevated blood pressure. The Supreme Court held that high blood pressure may be a “physical handicap” under the FEHA, since the statutory definition of the protected disability under Cal. Gov. Code section 12926(h) permits consideration of all handicaps that are physical, and not only those are are presently disabling.

In explaining section 12926(h), the court resorted to the literal definition of the term “handicap” as defined in Webster’s dictionary: “physical handicap includes …, or any other health impairment which requires special education or related services. The Court further emphasized that the law protecting workers from being discriminated based on their disability clearly was designed to prevent employers from acting arbitrarily against physical condition that, whether actually or potentially handicapping, may present no current job disability or job-related health risk.

Thus, the mere fact that a worker isn’t constantly experiencing the symptoms of high-blood pressure, doesn’t mean that he is not disabled within the meaning of FEHA, as he or she does face an actual risk of experiencing those disabling symptoms.

The California Fair Employment and Housing Act basically defines two categories of disability: mental disability and physical disability. Each category contains its own specific definitions. In addition, under FEHA, an employee with a “medical condition” which is not quite considered a disability is also entitled to a reasonable accommodation.

The following are the specific definitions of physical disability under FEHA:having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, muscular and skeletal, respiratory, speech, reproductive, digestive, urinary, lymphatic, skin, and endocrine systems. The major life activity is considered limited if it makes the achievement of that major activity difficult.

It should be noted that sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting form the current unlawful use of controlled substances or other drugs, are specifically excluded and are not protected as disabilities under FEHA.

The California Fair Employment and Housing Act (FEHA) provides a non-exhaustive list of possible accommodations that an employer may consider to accommodate a qualified disability or medical condition of an employee. These typical reasonable accommodations include, but are not limited to:

• Making facilities accessible to and usable by disabled individuals;

• Job restructuring (modifying daily duties of an employee);

Under California law (Fair Employment and Housing Act or “FEHA”) an employer has an affirmative duty to engage in a timely, good-faith interactive process with an employee who is disabled or who the employer perceives to be disabled.

The interactive process is a discussion between an employer and employee that contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings to find a reasonable accommodations to the employee’s disability to the extent possible, without constituting undue hardship on the employer.

Communicating with the employee’s representatives, rather than with the employee personally, may suffice in some circumstances. In Hanson v. Lucky Stores, Inc., the court noted that it was appropriate for the employer to consult with employee’s doctors and vocational rehabilitation specialists in order to identify available and suitable positions and offer those to the disabled employee.

The employer must engage in a “timely, good faith interactive process … in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. Although the law doesn’t specifically provide, the California court rulings make it clear that the employer must initiate the interactive process if the employee’s disability is known or apparent. An employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities. Prilliman v. United Air Lines, Inc. (1997) 53 CA4th 935, 950.

An employer “knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.” Faust v. California Portland Cement Co. (2007) 150 CA4th 864, 887. This means that if the employee’s medical condition is not apparent (such as diabetes, carpal tunnel syndrome, etc.), the employer cannot be under a legal obligation to engage in an interactive process with that employee if the employer doesn’t know and has no reason to know that the employee is suffering from disability or medical condition. However, if the employee’s condition is obvious (a woman with an obvious pregnancy, an employee with a cast on his hand or foot, etc…) then the employer has to initiate the interactive process of providing reasonable accommodations to that disabled employee.

interactive-process-FEHA-disabilityAs I work and get in get in contact with more San Francisco area employers and employees, I can’t help but be amazed at the liability exposure that the companies-employers incur as a result of their human resources’ managers ignorance of the basic disability laws that lead do series of wrongful terminations, and retaliatory demotions, suspensions and transfers, many of which are unlawful under California law.

At first, I thought my experience was an exception, but after speaking with many of my fellow employment lawyers in the area, I realized that we all noticed that the vast majority of human resources managers do not even have a general idea about what “interactive process” of employees who are disabled or perceived to be disabled is. Many of them don’t even know that in most cases it is illegal to terminate employee because of his or her disability even if he or she is an at-will employee, because while at-will employment allows an employer to terminate employee for any reason, no reason or arbitrary reason, it does not permit terminating employees for unlawful discriminatory and retaliatory reasons. .

These seemingly technical violations often lead to mediation, arbitration and trial verdicts of hundreds of thousands of dollars or more, including punitive damages and attorneys fees against employers.

The California Fair Employment and Housing Act requires employers to make reasonable accommodation for the known disabilities of applicants and employees to enable them to perform a position’s essential functions, unless doing so would produce under hardship on the employer.

“Reasonable accommodation” means that employers have an affirmative duty to accommodate disabled workers. Some highly appointed executives often argue that their company should not be liable for failure to provide reasonable accommodation because the disabled employee did not inform them personally of his condition and only informed his/her immediate supervisor. However, this argument will not allow the employer to escape liability because a supervisor is the employer’s agent for purposes of the duty to accommodate. That is, if a supervisor has acquired knowledge that he or she had a duty to communicate to the employer information about an employee’s disability or medical condition, a conclusive presumption arises that the supervisor had done so. California Fair Employment and Housing Comm’n v. Gemini Aluminum Corp (2004).

This law makes perfect sense, as it would be unreasonable to expect a disabled or sick employee to notify of his condition every person superior to him in the company, especially if that company is large and employees hundreds of supervisors and managers. Arkady Itkin, San Francisco employment lawyer.

Under California Fair Employment and Housing Act (“FEHA”), an employer must make “reasonable accommodation” for individuals with known disabilities unless it can demonstrate that doing so would be an undue hardship on the business. Failure to make a reasonable accommodation is itself an unlawful practice than can give rise to a civil suit and damages under FEHA.

Under the law, the employer must engage in a timely, good faith, interactive process to determine effective reasonable accommodation. Reasonable accommodation may, but does not necessarily include the following: making existing facilities readily accessible to and usual by individuals with disabilities, such as wheelchair users; restructuring job schedules and responsibilities to allow an employee to attend medical appointments or reduce work load; acquiring or modifying equipment or devices, such as ergonomic chairs and keyboards, etc. Further, the employer has affirmative duty to inform a disabled employee of other job opportunities and lean whether the employee is interested in and qualified for them.

It is important to remember that an employer is not obligated to choose the best accommodation or the one sought by the employee. Rather, the employer has the ultimate discretion to choose among effective accommodations.

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