Q: I WAS diagnosed with a medical condition which requires me to miss some days of work. I had told my boss about my condition and I submit a doctor’s note every time I am absent. Recently, my boss told me that I was in violation of the company’s attendance policy, which may cause me to be fired. What are my rights?
A: Your employer has a duty to engage in interactive process to determine if you can be provided reasonable accommodation. Terminating an employee based on absences due to medical condition may subject the employer to liability for wrongful termination based on disability discrimination.
This issue was the subject of a recent jury trial in Los Angeles:
Raphael Vasquez, 66 years old, worked as a bus driver for the Los Angeles County Metropolitan Transportation Authority (MTA). He worked part time since 2007 but became full time in 2010. Mr. Vasquez was suffering from several disabilities, such as gout, diabetes, cataracts, and a hip condition. His disabilities caused him to miss several days of work.
MTA fired Mr. Vasquez claiming violation of MTA’s attendance policy because he had incurred too many absences. However, almost all his absences were related to his disabilities. Half of the absences were in fact protected by law under the California Family Rights Act and the Family Medical Leave Act.
Mr. Vasquez sued MTA claiming that he was wrongfully terminated because of his disabilities. He further accused MTA of failing to engage in interactive process, and to reasonably accommodate his disability. He further accused MTA of retaliating against him when he tried to seek reasonable accommodation and ask for sick leave. As a result of the firing, Mr. Vasquez could not pay for his son’s college and his son had to drop out. Because all he could find was a part time job, he had to file bankruptcy and give up his house. He suffered major depressive disorder.
MTA countered that the employee was fired for incurring eight absences not covered by the disability laws and which violated the employer’s attendance policy. MTA said it did not know that the employee was disabled, that he did not ask to engage in interactive process, or request for accommodation. He also did not file for disability leave on time.
California law prohibits discrimination based on disability or medical condition. An employer may not terminate an employee or discriminate against the employee based on the employee’s disability or medical condition. If a disabled employee is unable to perform his or her old duties, the employer must engage in a timely, good faith interactive process to determine if reasonable accommodation can be made for the employee. The employer must start the interactive process if the employee’s disability becomes known or obvious.
The type of reasonable accommodation to be provided will depend on the employee’s specific restrictions and the employer’s circumstances. Reasonable accommodation may include offering part-time or modified work schedules to the employee to accommodate the employee’s disability.
After a 9-day trial, the jury returned a verdict in favor of Mr. Vasquez, awarding him $84,348 for past lost wages and benefits, $385,287 for future lost wages and benefits, $185,000 for future medical expenses $1,000,000 for past emotional distress, and $250,000 for future emotional distress. The total verdict against MTA was $1,904,635.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum – a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: wage and hour (overtime) litigation, serious personal injuries, wrongful death, insurance claims, and unfair business practices. His law firm is currently class counsel to thousands of employees seeking payment of wages in California courts. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. Inquiries to his law office are welcome and at no cost.