[COLUMN] Being fired after getting sick 

Why your written notices to employer can better protect you

Q: I got along great with my former boss, but I could sense our new manager didn’t like me  from her first day. When I was out sick in March, she re-assigned one of my biggest tasks to another  employee. After I complained, she adjusted my work schedule though I had been previously allowed to  leave work early a few days a week for night school. I complained to our General Manager, who allowed  me to keep my old schedule, and reminded my manager that I was a valued, long-time employee. 

Unfortunately, that General Manager left for another job in the end of March. In April, I got  sick again. I e-mailed my manager to let her know I was very sick and couldn’t come into work. I kept  her updated via e-mail, and after about a week she asked when I was coming back to work. I told her I  was still very sick, and she said I would need to give her a doctor’s note when I came back. 

I eventually tested positive for Covid. I let my supervisor know. But it took me a while to get  better, and my supervisor kept telling me to send a doctor’s note even though I could barely drag myself out  of bed. Eventually I was able to speak with my doctor remotely and he said my symptoms all pointed to  long Covid. I e-mailed my supervisor to let her know, but I didn’t hear back from her right away. I  emailed her later that evening asking for a form to apply for medical leave. That was on a Friday. The  following Monday, I received an email from HR saying that I was terminated for absenteeism and job  abandonment. 

I was pretty upset, but I let it go at first since I wanted to focus on getting better. But this made  me think my employer was looking for the first excuse to get rid of me. Was my firing illegal? 

A: It is likely that your employer violated multiple California employment laws.  Under the California Family Rights Act (“CFRA”), employers with 5 or more employees  must allow eligible employees to take up to 12 weeks of medical leave without fear of  losing their jobs. You are eligible for CFRA leave if you worked for your employer for at  least 12 months and worked at least 1, 250 hours within the past 12 months before the

medical leave. It sounds like that applied to you.

So you being fired after being out sick for 3 weeks, and shortly after you had made  known your intention to apply for medical leave, likely violated your rights under CFRA.

It also appears that your employer violated a number of provisions of the  California Fair Employment and Housing Act (“FEHA”) by: (1) committing unlawful  disability discrimination in deciding to fire you due to your long Covid; (2) refusing to

provide you a reasonable accommodation for your illness; and (3) failing to engage in a  mandatory interactive process to assess the possibility of a reasonable accommodation.

A disability under FEHA includes any physiological disease that affects your  respiratory and musculoskeletal systems and limits any of your major life activities,  including the major life activity of working. What you describe appears to fit in that  definition. A reasonable accommodation for such disability would have been the CFRA  leave you had requested to allow you time to recuperate and then come back to work.

It is good that you emailed your employer to notify it of your sickness and  your request for leave. By simply ignoring your request for medical leave, your employer  failed FEHA’s requirement that employers “engage in a timely, good faith, interactive process with  the employee … to determine effective reasonable accommodations, if any, in response to a request for  reasonable accommodation by an employee … with a known physical or mental disability or known  medical condition.”

The employer further and separately violated FEHA’s requirement that employers  “make a reasonable accommodation for the known physical or mental disability of an … employee,” such  as by allowing a medical leave to allow an employee to recover and return to work.

And then, ultimately, your employer’s decision to terminate your employment in  order to “dodge the bullet” of your long Covid violated FEHA’s prohibition against  discharging an employee on account of an actual or perceived disability.

Note that both CFRA and FEHA authorizes recovery of attorneys’ fees and  litigation costs in the event you prevail on your claims. This legal remedy enables  employees to consult with counsel, who can help you on a contingency (no recovery, no  fee) basis. In this way, meritorious claims can be pursued without the employee having to  pay the upfront costs of a court action.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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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. [For more than  25 years, C. Joe Sayas, Jr., Esq. 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, selected  as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for  Outstanding Filipino Overseas.]

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