Wrongful Termination Due To Physical Disability
California Fair Employment and Housing Act (FEHA): It is unlawful for an employer to terminate an employee from employment because of the employee’s physical disability, mental disability, or medical condition. Cal. Gov. Code § 12940(a).
Under FEHA, physical disabilities, mental disabilities, and mental conditions are defined broadly and include both actual disabilities and conditions, and situations where an employer perceives that an employee has a disability or condition. Cal. Gov. Code § 12926.1(b).
A physical disability is “[a]ny physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
- affects one or more of neurological, immunological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, and limits a major life activity.
- If it makes achievement of a major life activity difficult then it is a limit on a major life activity. “Major life activity” is broadly construed and includes physical, mental, and social activities as well as working.
Physical disability “does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.” Cal. Gov. Code § 12926. It also includes but is not limited to:
- Back conditions,
- Wrist Injuries,
- Hypertension and high blood pressure,
- Hypersensitivity to Tobacco,
- Injury to: Shoulder, Eye, Foot, Wrist, Jaw, Neck, Leg, Hip, Ankle, Hand,
- Severe migraine headaches,
- Severe pain,
- Injuries that require surgery such as head surgery, eye surgery, shoulder surgery, back surgery, neck surgery, foot surgery, hand surgery, hysterectomy,
- Cystic fibrosis,
- Sickle Cell Anemia,
- Polycystic kidney,
- Tuberculous sclerosis,
- Huntington Disease,
- Spinal muscular atrophy,
- Lung carcinoma,
- Heart Disease,
- Parkinson Disease,
- Crohn’s Disease
- Brain seizures
- Color blindness
Perform the Essential DutiesTo bring a claim an employee must be able to perform the essential duties with reasonable accommodations. Green v. State of California, (2007) 42 Cal. 4th 254, 263, citing Stats. 1992, ch. 913, § 1, p. 4282.
- Essential duties/functions of the job are defined as duties of the employment position.” They do not include the “marginal functions of the position.” Cal. Gov. Code §12926 (f). for example
- Plaintiff had a conditional offer for appointment as a correctional officer. He was unable to complete the prerequisite training because of a permanent knee injury, which also “made it impossible for him to perform the essential functions of the position for which he was conditionally hired.” Plaintiff was qualified for the position when he was given the condition offer of employment but he failed to satisfy the prerequisites for permanent appointment to that position. Thus, Plaintiff failed to establish a prima facie case for wrongful termination based on his disability. Hastings v. Department of Corrections, (2003) 110 Cal. App. 4th 963, 971.
It is also unlawful for an employer to “fail to make reasonable accommodations for the known physical or mental disability of an applicant or employee.” Cal. Gov. Code § 12940(m). (more below)
It is unlawful for an employer to “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” Cal. Gov. Code § 12940(m).
An employer “who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions....if the employer offers similar assistance or benefit to other disabled or non-disabled employees or has a policy of offering such assistance or benefit to any other employees.” Prilliman v. United Air Lines, Inc., (1997) 53 Cal. App. 4th 935, 950-951.
Reasonable Accommodations include but are not limited to:
- “making existing facilities used by employee readily accessible to, and usable by, individuals with disabilities.”
- “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” Cal Gov. Code. § 12926(n).
- giving an disabled employee time to recuperate or heal by leaving their job open for a period of time is a reasonable accommodation, “where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.” Jensen v. Wells Fargo Bank, (2000) 85 Cal. 4th 245, 263.
- Offering the Disabled employee a position that is vacant. Hanson v. Lucky Stores, (1999) 74 Cal. App. 4th 215, 227.
Possible Physical Disability Discrimination, Termination Scenarios At Work
It is not uncommon for employees to become disabled during their working lives. In some situations the disability comes about due to an illness. Sometimes the employee is injured at work and becomes disabled. A large number of employees are permanently or temporarily disabled at the time of hire. California law protects disabled employees from discrimination, harassment, and termination due to these disabilities. As long as the employees are able to perform their duties with reasonable accommodations, the employer has a duty to act to prevent harassment and discrimination of these employees, and cannot allow them to be terminated for the disability. Each person’s experience is unique. If you find yourself in a situation similar to any of the ones described below, or any other situation where your medical condition or disability has led to discrimination, harassment or termination, contact the Los Angeles employee lawyers at our office.
Failure of Employer To Arrange For Accommodating Work Arrangements for Employee: An employee who is temporarily disabled due to an injury or medical condition may require assistance from coworkers with some of the duties he or she is normally expected and accustomed to do alone. The employee may have received a doctor’s orders not to lift more than a certain number of pounds, raise the arms beyond a certain level, bend down and stand up repeatedly, or otherwise place a strain on injured joints, arms, legs, hands, back, etc.
In order to comply with the doctor’s order, the employer could make arrangements for the duties to be redistributed such that the disabled employee can still work a full day on the job, and the duties he or she is temporarily unable to do can be passed on to the coworker for the duration of the disability. Alternately, the disabled employee may be reassigned to a different position in the workplace.
However, an employer may not be willing to make such an accommodation, even though it would be reasonable for the employer to provide the accommodation. Management may have a rigid view of who is supposed to do what at the workplace. Or they may think that making such an accommodation will mean that other employees will be unfairly burdened with the harder aspects of the job. Whatever the motivation, the employer may tell the employee that there is no position available for someone who must work under the doctor-ordered restrictions and put the employee on unpaid leave until the employee is able to provide a doctor’s note ending the restrictions.
As soon as the employee has been released from the restrictions, he or she may provide the release note to the employer and ask about returning to work, only to find out from Human Resources or a supervisor that the position has been eliminated or that the employee has been replaced. Your situation may not be exactly like this, but if there are significant similarities, contact our office.
Failure of Employer To Provide Accommodation For Disability: Some jobs require an employee to spend all or almost all of the workday standing and/or walking. If an employee has an injury or medical condition, it may be difficult, or even injurious, to remain on foot for that much time. Some medical conditions, and even some treatments for medical conditions, can cause or increase the rate of fatigue for an employee. An employee who returns to work from some form of surgery may be fully ready to perform the job duties, but may still have temporary physical limitations. In such circumstances, an employee might obtain a doctor’s note recommending that the employee be given access to a stool or chair to sit on briefly from time to time during the shift.
An employer may comply with the note at first and provide the chair or stool to the employee, but may later withdraw it, arguing that it is a safety hazard for the staff. If the employee complains to management about the refusal to comply with the doctor’s recommendation, the employer may ultimately say that the only “accommodation” they can provide is unpaid leave until the employee is ready to return to work without the restriction, even though the employee is fully capable of performing the job duties.
During the employee’s involuntary leave of absence, the management may go through the employee’s personnel file to find a reason for termination based on performance. They may find instances when the employee clocked in a few minutes late, or a past write-up for an error. Each person’s experiences are unique. If you feel your current or former employer has failed to provide accommodations for your disability, or if you wind up being terminated after requesting reasonable accommodations, contact our office.
Failure by Employer To Engage In Discussions with Employee Regarding Accommodations For the Disability/Medical Condition of Employee: Sometimes an employee who becomes disabled due to injury or medical condition requests an accommodation so he or she can continue to work. The employee provides a doctor’s note regarding the limitations to the tasks the employee can perform and lists certain restrictions against certain physical acts, such as repeated bending, stretching, climbing or lifting items above a certain weight.
Upon receiving this note, the company’s management may determine right away that the employee is not capable of working for the company and puts him or her on unpaid leave with the instruction that a doctor’s full release from restrictions is the only way that the employee may return to work. At no point does the management make any attempt to have a conversation or any other interaction with the employee to consider what possible arrangements, assistance, or other accommodations could be put into place at the company so that the employee could continue to work.
For example, the employee may be agreeable to a temporary relocation to a different department, a change in the work schedule, or reduction of work hours. Or the doctor’s note may indicate the need for a modified workstation to allow easy entry and exit to the workplace for an employee restricted to a wheelchair. In another example, an employee in a job that requires standing at all times, yet whose doctor’s restriction requires that he or she be permitted to sit from time to time may request that a stool or chair be provided in the workspace until the doctor lifts the restrictions.
Yet the employee is never afforded the chance to even discuss with management the details of the restrictions and how the employee can continue to be a productive part of the company’s workforce. Instead, the employer decides to terminate the employee because he or she is supposedly unable to perform the essential duties of the job. There are many situations in which an employer can fail to interact with an employee dealing with a disability that does not prevent the employee from being a meaningful and useful member of the company. If you are or have been in such a situation, contact our office for a consultation.
Harassment Due To Disability at Work: Sometimes an employee’s disability is permanent and visible. In general, society disapproves of people who mock or insult others who have obvious disabilities, including disfigured limbs or extremities, a speech impediment, or who are unable to walk and require a wheelchair or other means of assistance.
Things sometimes change over time in the workplace, however. When people spend hours each day in regular contact over an extended period of time, a social environment develops wherein people might feel that social rules have changed somewhat due to increased familiarity. Some of the disabled employee’s coworkers, and even the supervisors, may feel they have license to use derogatory terms or “nick-names” toward him or her during the workday, thinking that the disabled employee should understand that no malice is intended.
They may even see use of these derogatory words as a way of asserting a kind of camaraderie. If the target of these terms protests or complains, they may make just that sort of argument and suggest that the disabled employee should not be upset. On the contrary: from their perspective he or she should understand where they are coming from and feel accepted by the group once he or she “toughens up.”
However, the disabled employee may not see things that way at all, but could see the repeated use of such nicknames as harassment. He or she may feel that he or she is being singled out not for accomplishments or proven capabilities on the job, but for the thing that should matter least yet is visible every day when he or she goes to work. Ultimately complaints to management about this may fall on deaf ears, for they might feel the same way about the situation.
Or, if management does decide to respond, it may do so by scheduling a mandatory meeting for all employees and a Human Resources representative to talk about sensitivity toward the disabled, and not by taking any direct action toward the harasser or harassers. After being made to attend this meeting, the harasser or harassers may find ways to retaliate against the complaining disabled employee. Coworkers may shun him or her and maintain an obviously unfriendly attitude. Supervisors may become significantly more demanding and critical. The disabled employee may suddenly be repeatedly written up for small things, such as arriving a few minutes late to work, when before such occurrences were not previously worthy of any comment.
The increase in frequency of write-ups may ultimately lead to termination, at which point the disabled employee may be told that he or she is “not a good fit” or that he or she would be happier elsewhere, so it doesn’t make sense to keep him or her on any more. If you have found yourself in a situation similar to this, call our office for a free consultation.
Termination of Employee During Disability Leave: An employee who becomes ill or injured and is unable to perform his or her work-related duties may request disability leave from the employer, and provide a note from a doctor indicating when the employee may be able to return to work. The employer may confirm receipt of the note, grant the unpaid leave of absence, and claim that the position will be available once the employee has recovered.
However, the employee may need additional time to recover and provide an extension of leave note from the doctor with a new projected return date. Upon providing this additional note, though, the employee may meet resistance from the employer. A manager may say that the company needs the employee back at work, and that the position will not be waiting for him or her if the employee does not return at a specified date before the expiration of the latest extension. This warning puts the worker in a situation where he or she needs to choose between respecting the doctor’s orders and keeping the job.
When the return deadline imposed by the employer approaches, the doctor may make it clear that the employee is not able to return to work, and in fact may need an additional extension when the previous extension expires. The employee then continues to keep management aware of his or her inability to go back to the job and provide additional doctor’s notes as required.
The management can respond to this information a number of ways. They can ignore the attempts by the employee to contact them about the need for an extension. They can repeatedly deny that they received the extension notes and ask the employee to re-send it multiple times. They can create confusion by referring the employee to Human Resources, then to a shift supervisor, then to a third-party disability leave administrator, and then back again. They can demand further details about the disability beyond the basic information, arguing that they believe the employee is overstating the disability in order to get out of work and collect disability income.
Finally, the employee may receive a letter from the employer indicating that he or she has been terminated, and given the reason the elimination of his or her position. If the employee calls the employer to get more information than was provided in the letter, he or she may be told that it was because of the failure to return to work on the date the manager gave.
An employee who is on medically necessary disability leave has rights, but the details surrounding each situation are different. If you feel your rights are being violated by your employer, or if you have been terminated while you were on disability leave, contact our office for a free review of the facts.
Failure of Employer To Provide Employee Sufficient Time To Give Documentation of Disability: If an employee tells management that he or she needs to take leave due to a disability or serious medical condition under the Family Medical Leave Act (FMLA), and the employer asks for proof of the disability or serious medical condition, such as a doctor’s note, the employee has fifteen days after the employee has requested it in writing to obtain and provide the documentation. Many employers, however, may not follow the procedures required by law.
For instance, an employee becomes very sick and has to be rushed to the emergency room for a condition that will require him or her to remain in the hospital for an extended stay due to the illness. In the beginning, the employee – or a family member in the circumstance when the employee cannot do so – calls the employer and notifies a manager or human resources representative about the illness. Over the phone, the employer may give the employee a few days to provide a doctor’s note or be terminated for abandoning the position. If the employee is unable to provide the document within that period, the employee may be fired, though perhaps not for failing to send the papers. The employer may find a different reason to terminate, such as a prior write-up or a previous negative performance review. Yet given the timing of the termination, it appears clear that the employee was fired because of the medical condition.
Employees who are struck with a disability or serious medical condition have rights. Every employee’s situation has its unique set of facts. If you feel that your rights have been violated, contact our office for a free consultation.
Employer Asking For Too Much Detail About Medical Condition Or Disability of Employee: Employers generally ask an employee who requests time off because of a medical condition or disability to provide some form of medical documentation as proof. Sometimes the Human Resources representative or the manager is doubtful about the genuineness or seriousness of the medical condition or disability if the note provided by the employee does not provide much detail about what is wrong with the employee’s health. The employer may ask for additional documentation or medical records to “prove” that the employee needs the time off and isn’t just trying to get out of work. Sometimes the employer may be doubtful that a particular medical condition, such as stress or anxiety for example, is real and worthy of being considered a serious medical condition or disability. The employer may demand to know more than that the employee is under the care of a doctor.
In such situations, an employee may not be able to obtain a note with more detail, as the doctor may feel that disclosing more information violates the rules of confidentiality. Or the employee will not want to ask the doctor to write a more detailed note to protect his or her privacy, as he or she may have medical issues that he or she does not wish to disclose publicly. Or the employee and the employer will have a different idea about what a “serious medical condition” or disability is. Not satisfied with the medical documentation that was provided by an employee’s doctor, the employer may terminate the employee. The employer may even claim that the illness or disability is “fake.”
Employees who require leaves of absence from an employer due to a medical condition or disability have rights when it comes to protecting their medical privacy. If you feel that your employer is demanding too much information as a condition of granting a leave of absence due to a medical condition or disability, or if you have been terminated because your employer did not accept your medical documentation on the grounds that it was not detailed enough, give our office a call. Each situation is different.
Failure of Employer To Provide Intermittent Leave Of Absence For Serious Medical Conditions or Disabilities: In some situations, an employee may have a medical condition or disability that does not require a single extended leave of absence. Many employees have long-term or chronic medical disorders that require a number of short leaves of absence from anywhere between half of a workday to a couple workdays at a time stretched out over a period of a few weeks or longer. Or, an employee may be able to return to work after a leave of absence due to a serious illness, but may require periodic time off during the recovery period.
Sometimes these periodic leaves are necessary to keep vital medical appointments when the employee’s doctor is available to provide scheduled treatments that must be administered under the provider’s care. In other situations, the employee’s medical condition may subject him or her to periodic bouts of weakness, severe pain, nausea, fatigue, or some other related symptoms while on the job, or before going to work. These bouts may occur at a certain time of day, or a certain number of days out of the week, but otherwise the employee is generally available to perform his or her work-related duties.
In such situations, a doctor’s note may advise the employer that the employee should be allowed to leave work early if these symptoms arise during the workday, or should be allowed to arrive at work late if the symptoms arise before the employee’s shift is scheduled to begin. The symptoms related to the medical condition, and the general frequency of their occurrence, may be anticipated to some degree by the employee’s doctor, but exactly when they will be experienced by the employee cannot be predicted.
Regardless of the need, the employer may not be willing to accommodate the employee’s need for periodic leaves of absence. In some circumstances, the employee may notice that the employer is not modifying the work load to accommodate the adjustment of the schedule. The employer may in fact increase the work load of the employee, making it hard for him or her to meet performance targets. This may be followed by a number of write-ups or other criticisms of the employee’s work, leading to the termination of the employee.
Or, the employer may put the employee on unpaid disability leave rather than have him or her work under a limited work schedule. When the employee is able to return to work without the need for any restrictions, including intermittent leaves of absence, the employee may be told that he or she has been terminated due to the elimination of the position while the employee was on leave.
Each employee’s circumstances are unique. If you find yourself in a similar situation with your employer, or if you have been terminated after having gone through something similar, contact our office. You have rights as an employee.
Employer’s Excessive Criticism of Employee’s Performance due to Employee’s Disability: An employer who is notified that an employee has become disabled due to injury or serious medical condition may not want to continue to keep that person on as an employee. However, management may have some awareness and understanding of the employee’s rights not to be discriminated against based on the disability. A manager may even engage in a conversation with the employee about what accommodations will be needed so that he or she can continue to contribute as a part of the company’s workforce.
The manager may even express a willingness to make the necessary accommodations. For example, once given notice, the employer may allow the employee to leave early once or twice a week for medical appointments or physical therapy sessions that are not available outside of normal work hours. Or, for another example, management might temporarily relocate the employee to a different, less physically demanding department to prevent aggravating the employee’s injury and reversing his or her recovery. Or, if needed, the employee may be put on a temporary part-time schedule.
However at some point, the company may begin a campaign of micromanagement and criticism of the disabled employee’s performance. The employee may begin to receive verbal warnings or write-ups about occurrences that had nothing to do with the employee’s duties. He or she may be written up for something outside of his or her control. Or being a few minutes late to work a few times during this time period may result in write-ups or warnings, when this was never a problem before. The employer may be aware, for example, that the employee has a medical appointment related to the disability prior to the start of the work day, but if the appointment causes the employee to be a little late, and even if the employee notifies the management, this may result in an additional warning or write-up.
The result of the increased rate of criticism, warnings and writing up of the disabled employee may be a way for the company to terminate him or her for what the management may call performance. You may be noticing or have noticed something like this happening to you after notifying your employer about your medical condition or disability. You may have already been terminated after going through something like this. If this is your situation, contact our office for a consultation.
Failure of Employer To Provide Medically-Necessary Rest Breaks: An employee who develops a medical condition that, according to the employee’s doctor, requires accommodations over a defined period of time, such as increased rest periods, as the medical condition causes physical discomfort and an increased level of fatigue. The employee provides a doctor’s note to the supervisor requesting a few extra brief resting periods during the workday. However, the supervisor responds that the additional rest periods will cause a problem for the employer. The company will not be able to allow for the rest breaks. The employee may be given a choice between continuing to work under the same schedule and resigning. In most situations the employee will choose to continue to work. As a result, the employee’s work performance may suffer, resulting in write-ups and warnings and ultimately termination. You may have experienced a similar situation with your employer, or may be in the middle of such a situation. If that is the situation, contact our office.
Failure of Employer To Provide Necessary Extra Restroom Breaks: Some medical conditions require increased frequency of restroom breaks. The condition itself or the medications an employee has to take for the condition may affect the body’s systems such that a trip to the bathroom is needed more often than usual, and more often than is considered acceptable by the employer. In other situations the employee must take prescription medications on a rigid schedule and the employee would need to use the restroom to administer this medication in private. The employee turns in a doctor’s note indicating that the employee will need to use the bathroom more often that generally permitted by the employer, or that one or more prescriptions need to be taken at specific times during the day, and that the employee will need to use the restroom to administer these prescription medications.
Management of the company may not want to deal with these requests. In some employment situations, the employer may think that making such allowances for employees will slow down the business and simply refuse to make the accommodation. Or in another situation, one manager may tell the employee that these restroom breaks are allowed, but a shift supervisor may continue to write the employee up for taking too many unauthorized breaks. These disciplinary actions may ultimately lead to the employee being suspended and then terminated. Each employee’s situation is unique, but there are often points in common. If you have had an experience similar to this, contact our office.
If you are experiencing discrimination due to a disability or medical condition, contact the highly experienced attorneys concentrating in wrongful termination due to disability, at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.