Q: AFTER12 weeks of medical leave for a surgery, I told my employer I could not go back to work yet. One day after I was supposed to be due back at work, I was fired. HR told me the company had a strict 12-week leave policy and employees not able to return to work in 12 weeks are fired. Is this right?
A: No, it is not. Your employer had a duty to engage in interactive process to determine if you can be provided reasonable accommodation. Granting additional leave may constitute reasonable accommodation.
Under California law an employer may not terminate an employee based on disability, medical condition, or pregnancy. Disability includes physical disability, mental disability or a medical condition. Under California’s Pregnancy Disability Leave Law (the pregnancy law), pregnancy – and all its related medical conditions such as severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth – is considered a temporary disability.
If a disabled employee is unable to perform work duties, the employer must engage in a timely interactive process. This means that the employer must communicate with the employee to determine if reasonable accommodation can be made that would allow the employee to keep working.
How should the parties engage in the “interactive process”? Once the disability becomes known, the employer must consult the employee to identify potential accommodations to enable the employee to do his/her job. Sometimes, the employee may simply need additional leave. Extending the leave may be considered reasonable accommodation.
Engaging in the interactive process is an important step for employers. Consider the following case
Family HealthCare Network, is a health care company that operates over 20 health care sites in Tulare, Kings and Fresno Counties. The U.S. Equal Employment Opportunity Commission (EEOC), filed a lawsuit against the company for violating the disability and pregnancy discrimination laws.
According to the EEOC’s lawsuit, Family HealthCare had rigid leave policies and practices that denied reasonable accommodations to its disabled and/or pregnant employees. When its employees used up their leave, the employer failed to engage in interactive process, and thus, refused reasonable accommodation. The employees were summarily fired when they were unable to return to work at the end of their leave. In some instances, the employer allegedly fired individuals during their protected leave period and before even exhausting their approved leave. When these employees tried to return to work, they were not rehired.
The EEOC argued that the employer’s automatic discharge of employees based on its leave policy, without inquiring into the need for reasonable accommodation, resulted in the illegal discrimination of disabled and pregnant employees.
The employer agreed to settle the lawsuit by paying $1,750,000 to aggrieved employees. The employer also had to agree to change its policies.
* * *
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.]