Under California law, it is unlawful for an employer to discriminate against an applicant or employee in terms of compensation, conditions, or privileges of employment due to a physical disability, mental disability, medical condition, or due to genetic information.
WHAT DOES IT MEAN TO HAVE A DISABILITY?
To have a disability means that the employee or applicant has an impairment that limits a major life activity. To limit a major life activity means that the impairment must make the carrying out of a major life activity difficult.
Major Life Activity can be something that is a physical activity, mental activity, social activity and includes working.
The FEHA does not require that the impairment result in complete inability or even substantial limitation on the employee’s ability to perform major life activities. A limitation is sufficient.California law not only protects employees or applicants who have an actual mental or physical disability or a medical condition, it also protects employees or applicants who:
- have a record or historyof a mental or physical disability or medical condition, which is known to the employer;
- are “regarded or treated by” the employer as having a mental or physical disability or medical condition. [This focuses on the employer’s perception]
- Situations where an employer perceives that an employee has a disability or medical condition that is disabling, potentially disabling, or perceived as potentially disabling.
- are associated with a person who has, or is perceived to have, any of those characteristics.
WHAT IS A PHYSICAL DISABILITY, MENTAL DISABILITY, AND MEDICAL CONDITION?
WHAT DOES IT MEAN TO REASONABLY ACCOMMODATE AN EMPLOYEE WITH A DISABILITY?
Once it is determined that the employee or applicant is a qualified individual with a disability and is not able to carry out his or her essential job functions, the employer has a legal duty to engage in the interactive process with the employee or applicant and explore reasonable accommodations, unless, the employer can demonstrate, after engaging in the interactive process, that the accommodation would impose an undue hardship. Failure to do so can result in an independent FEHA violation. Government Code Section 12940(n);
The employers obligation arises even if the employee or applicant does not ask for the accommodation. An employee is not required to use magical words, such as “I need an accommodation” in order to prompt the employer to engage in the interactive process. The employer’s duty to engage in the interactive process can be triggered if the employee notifies the employer that he is unable to carry out a job function due to his health condition or if the employer obtains information from the employee or his medial provider that the employee has work restrictions.
WHAT ARE SOME TYPES OF REASONABLE ACCOMMODATIONS
One of the keys to accommodations law is that, in the end, the employee must be able to perform (either with or without accommodations) the essential job functions. Here is a list of some typical accommodations:
- An employer can holding the position of the disabled employee open for a reasonable amount of time.
- An employer can provide a leaves of absence such as time off or intermittent leave.
- An employer can restructure the disabled employee’s position.
- An employer can adjust the work hours such as part-time work or working from home.
- An employer can reassign the disabled employee to a vacant and funded position.
- An employer can provide the employee with tools and equipment to assist the employee with their job duties.
WHAT ARE SOME TYPES OF UNREASONABLE ACCOMMODATIONS?
- An employer does not to create a new job.
- An employer does not to move another employee to another position.
- An employer does not to promote the disabled employee.
- An employer does not to violate another employee’s rights.
- An employer does not to reassign the disabled employee to a position that is not funded and not vacant.
HOW LONG DOES THE EMPLOYER NEED TO PROVIDE THE EMPLOYEE WITH A LEAVE OF ABSENCE?
There is no bright line test. The leave of absence should be for a finite period of time to allow the employee or applicant to recover from the disability. It is not reasonable to hold a position indefinitely.
DISABILITY AND WORKERS COMPEMSATION CLAIMS
If an employee is off work due to an industrial injury or illness, the injury or illness can result in the employee being disabled or regarded as disabled and may qualify the employee as having a serious health condition under the Family Medical Leave Act (“FMLA”) or the California Family Rights Act (“CFRA”).
CONTACT A LOS ANGELES DISABILITY DISCRIMINATION ATTORNEY
If you have been discriminated in the workplace based on a disability or medical condition, it is crucial that you speak to a Los Angeles disability discrimination attorney who has dealt with the complexities of the laws. Los Angeles disability discrimination lawyer Morris Nazarian has successfully represented several employees who have been who have been subjected to disability discrimination. Please contact Los Angeles Employment Attorney Morris Nazarian by calling (310) 284-7333 to make an appointment for a free initial consultation or please fill out the Employment Law Case Evaluation Form and Los Angeles Employment lawyer Morris Nazarian will call or email you as soon as possible.