By Joe Wilson
If an injured, sick, or mentally ill employee is terminated, demoted, written up or otherwise has adverse action taken against them, they may bring disability based claims. This includes disability discrimination, failure to engage in the interactive process, and failure to provide reasonable accommodations. All managers, and not just human resources, need to be aware of an employer's duties under California law.
First, managers must know that California law is broad, all encompassing, and meant to protect employees. A disability is a physical or mental condition that limits a major life activity. Major life activities include walking, eating, breathing, working, and the law states that it is meant to be broadly construed.
Employees with temporary conditions, such as a broken wrist, are also protected. Employees who have no problems, but are perceived to have a disability or mental condition are also protected. You can't simply fire someone because you think they are crazy. Well, you can, but if you do you'll be paying both them and their attorney a large amount for doing so.
When an employee has a qualifying disability, medical condition or mental condition, employers must make reasonable accommodations. Reasonable accommodations can be anything, including time off, shift changes, and transfer to a different position. The big factor is whether it is reasonable, and courts look to whether a company has the resources to provide the accommodation. The company's defense to failing to provide reasonable accommodations is that it imposes an undue burden on them. That is a high threshold to meet, and employers cannot use that defense unless they have first engaged in the interactive process.
To find out what type of accommodation needs to be made, employers are required to engage in the interactive process. This is an informal process, where the employer simply needs to find out what problems the employee has, and what type of accommodation they may need. Employers do not have to simply acquiesce to the employee's requests, they can offer alternatives, but the important aspect is that employers must engage.
It is surprising how often I hear about a manager who knows their employee to be sick, hurt or otherwise protected under California disability laws, and instead of engaging in the interactive process or talking to HR, they take some type of adverse action. Don't let your managers be ignorant. At the end of the day it could cost the company a significant amount of money and goodwill.
About the Author
Joseph C. Wilson is the founding partner of Curiale Wilson LLP. His practice is focused on employment defense litigation, including misclassification, wage and hour claims, discrimination, wrongful termination, harassment, and California Private Attorney General Act (PAGA) actions. In his practice, Joe has successfully represented clients in both state and federal courts, before the California Labor commissioner, the National Labor Relations Board, and in arbitration. Joe is licensed to practice before all the Courts of the State of California, the United States District Courts for the Northern and Central Districts, and the Ninth Circuit Court of Appeals.