Workplace Disability Discrimination- Common Violations by Employers

California’s Fair Employment and Housing Act (FEHA) protects employees with medical conditions or injuries in the workplace. Employers are required to abide by FEHA and can be held responsible for violations, whether intentional or unintentional. While the below-discussed violations are non-exhaustive, they are certainly the most common ones.

When an employee is determined to be Temporarily Totally Disabled (TTD) or Temporarily Permanently Disabled (TPD), the employer is required to engage in a timely, good-faith, interactive process with the employee in order to identify and provide reasonable accommodations for that employee. A common violation is when employers take the literal dictionary definition of the terms TTD and TPD to mean that the employee is Totally Disabled in all senses of the word. Disability can vary significantly from person to person and have an individualized effect on physical, mental and emotional levels. Under FEHA, an employer is obligated to have this interactive process and reasonably accommodate the employee per the individual disability.

When an employee returns to work with an injury or condition, their doctor’s note may indicate “light duty work only.” In this instance, the employer has an obligation to look over the specific restrictions and determine whether accommodations can be made and the employee can continue performing their tasks. A common mistake is when employers provide the blanket statement “we do not offer light duty work” and send the employee home. Under FEHA, upon receiving the note, the employer must participate in a good-faith, interactive process to discuss the employee’s specific restrictions and determine if tasks can be modified to allow the employee to continue performing their duties.

A common violation of FEHA is when an employer neglects their affirmative duty to engage in a timely, good-faith, interactive process with the employee. Instead, the employee is kept out of the conversation and the employer independently assesses, determines, and provides a plan or instructions to the employee. Often times, employer does not even consider accommodating the employees' restrictions.  FEHA requires the employer to listen to and communicate with the employee in determining possible accommodations.

Sometimes when an employee comes to work with a doctor’s note, the language may be unclear and require clarification. However, employers must make a good-faith effort to understand the employee’s doctor’s note and engage in an interactive process in an efficient manner. Claiming a doctor’s note is ambiguous and requires clarification, in order to delay determining and providing accommodations, is a violation of FEHA.

A common violation is when employers use a generic job description that does not match the specific employee’s position in order to claim that certain accommodations are not possible. Employers love hiding behind the defense that the employee's restrictions prevent them from fulfilling the essential duties of their job. Accommodations must be determined based on not only the employee’s specific restrictions, but also the employee’s specific tasks. Generic job descriptions usually encompass more than the employee’s actual job description. Therefore, an individualized analysis of the employee's day-to-day duties is often required.

Sometimes employers instruct their employees not to return to work until their restrictions are lifted. This is also a violation of FEHA. If there is a way to accommodate an employee’s restrictions and allow the employee to continue performing their job, employers are required to do so. Employers have a duty to assess each employee’s restrictions on a case-by-case basis and cannot opt out of this duty by asking employees to remain home until restrictions are lifted.

FEHA requires employers to provide accommodations to disabled employees unless the accommodations create an undue hardship for the employer. Employers cannot claim undue hardship without first running an assessment to determine whether or not there is an actual undue hardship. Undue hardship is not inconvenience or mere expense, there needs to be proof that the specific accommodation(s) create an undue hardship. Unsubstantiated claims of undue hardship violate FEHA.

The Family Medical Leave Act, a federal law, requires an employer to provide up to 12 weeks of protected leave. The California Family Rights Act, a state law, also requires employers to provide qualified employees with 12 weeks of protected leave to address medical conditions. A common violation is when employers terminate their employees following the 12 weeks provided by FMLA and CFRA. Under FEHA, employers are required to consider granting extended leave beyond the 12 weeks, in some case even beyond one year mark.

A common mistake is when employers create uniform policies that state that an employee will be terminated if they do not return to work within a specific period of time usually one year. This is a violation of FEHA, because employers are required to determine each employee’s situation individually, rather than applying a uniform policy. Disabilities and restrictions vary greatly; employers must determine termination deadlines based on the employee’s specific situation.

When an employee returns to work with a doctor’s note indicating temporary restrictions, the employer is required to continue to provide accommodations for those restrictions, even if the disability becomes permanent. Terminating an employee upon notice of the disability changing from temporary to permanent is a violation of FEHA.

Your employer should not treat you negatively because you have a mental or physical disability or a medical condition. If you believe that you were subject to disability discrimination, you should consult the employment attorneys at the Serendib Law Firm. We represent people in Orange, Los Angeles, San Bernardino, and Riverside Counties. Call us at 1-800-LAW-8825 (800-529-8825) or complete our online form.