Q: I WAS severely injured in a recent car accident while returning to work on an errand. I had to undergo multiple surgeries. I missed several weeks of work and will need more time off for treatments. I am afraid to tell my employer about my need for more time off because I might be fired. What can I do?
A: You need to notify the employer immediately about the need for more treatments related to your injuries or medical condition. In this way, you are protected from any adverse action that may be taken against you at work.
Once notified of your medical condition or the need for more treatments related to a medical condition, the employer is obligated by law to engage you in a timely, good faith interactive process to determine if reasonable accommodation can be made.
There are several instances where an employee’s personal injuries (whether these injuries happened at work or outside work) lead to violations of the employee’s rights. Consider the following situations:
The employer denied the employee’s request to take time off to undergo treatments. Employers with 5 or more employees are prohibited from denying the right to use medical leave, or for disciplining, discharging, demoting, suspending, or discriminating against an employee for using such leave for themselves (or to attend to an ill family member).
The employer denied the employee’s request for reasonable accommodation. The employer must engage in a timely, good faith interactive process to determine if reasonable accommodation can be made for a disabled employee to accommodate restrictions. Sometimes, granting an additional short-term extension of an approved leave may constitute reasonable accommodation.
After filing a request for family or medical leave (or after filing a worker’s compensation claim), the employee experiences an adverse employment action, such as demotion, decrease in pay, decrease of work hours, loss of benefits, assignment to unfavorable tasks, suspension, or termination. Such actions contradict California law.
The employer retaliates against the employee for filing a worker compensation claim or some other claim by withholding the payment of all the employee’s wages due on the last day of employment. In California the employer must immediately pay all compensation due, and ensure that the employee receives the payment.
After the employee requests intermittent leave or comes back from leave, the employee experiences an adverse employment action such as being assigned to unfavorable assignments, given difficult-to-achieve deadlines, being written up, demoted, stripped of supervisory responsibilities, laid-off, or fired.
The employee is fired for “excessive absences” even though the employee provided doctor’s notes for these absences.
Employees who have been seriously injured face difficult challenges, including having to miss work in order to get treatments. These efforts to get the employees’ health back in order to rejoin the workforce is protected by law. If the employee was let go based on a disability or medical condition, the employee can sue for wrongful termination. The employee may be entitled to the following: reinstatement, back pay, loss of earnings, damages for emotional distress, attorneys’ fees and costs, and punitive damages in certain instances.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]