Do you know:
- California employers are required to speak with a disabled employee to determine whether or not that employee can work with or without a reasonable accommodation (known as the “interactive process”)?
- It is unlawful to terminate an employee because they have exhausted their 12 weeks of medical leave?
- That making a mistake in how you handle a disabled employee can cost you $4.5 million?
The Facts of the Case (e.g., what not to do)
A California jury recently awarded an employee $4.5 million for failing to accommodate her disability, failing to “engage in the interactive process”, and for retaliating against her for taking her protected medical leave.
The employee began working for the Asian American Drug Abuse Program, Inc. (AADAP) in 2011. During the New Year holiday of 2015, the employee broke her humerus and subsequently began medical leave. Not long after, the employee was diagnosed with major depression and needed more than the 12 weeks leave protected by the California Family Rights Act (CFRA). The need for the additional leave was certified by her doctor. Nonetheless, when her 12 weeks of leave were up, AADAP terminated her for “failing to return from her medical leave.”
The employee filed a lawsuit against her employer alleging that AADAP’s actions violated the CFRA and the Fair Employment and Housing Act (FEHA) (California’s anti-discrimination law). The employee argued, and the jury concurred, that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.
Below is a breakdown of the employee’s claims and the unlawful actions of the employer:
- Failure to Accommodate: The FEHA requires employers to reasonably accommodate qualified disabled employees. An extended leave is recognized as a reasonable accommodation. AADAP, however, failed to make any effort to determine whether or not there was an accommodation for the employee that would have allowed her to continue her employment. The jury determined that she would have been able to perform the essential duties of her job (or a similar vacant position) with reasonable accommodations.
- Failure to Engage in the Interactive Process: The FEHA also requires that an employer “engage in the interactive process” with an employee in order to determine whether or not there is a reasonable accommodation available. The jury also found that AADAP, despite its knowledge of the employee’s circumstances, did not take reasonable steps to communicate with her about her disability, her leave, or potential accommodations to facilitate her return.
- Retaliation for Taking Medical Leave: AADAP provided the employee with a letter stating that she was terminated for “failure to return from her medical leave”. At the conclusion of her 12 weeks of leave the employee provided AADAP with a doctor’s note indicating that the employee required additional time off to treat her depression. Despite the note, and despite the employer’s obligation to engage in the interactive process, AADAP automatically terminated the employee.
What Should Employers Do?
Learn from its mistake, and take these steps:
Create a paper trail. As soon as an employee requests a leave or an accommodation, document the request and discuss the request with a human resources expert or an employment attorney. Next, send correspondence to the employee acknowledging receipt of the request and outline the next steps.
Follow-up. It’s not enough to say that you received the request. Investigate. Ask questions. Request additional information about the impairment—within reason—to find out what the employee’s doctor says he/she can (or cannot) do. Ensure that the doctor has an updated job description outlining the employee’s job duties and physical requirements.
Talk it out. Speak with the employee, and get his/her feedback and suggestions on how you can accommodate the employee’s needs while also ensuring that that the employee is able to perform the essential functions of the job. Involve the employee’s doctor and do not hesitate to ask questions and get clarification on the employee’s limitations, if any. Keep an open mind about what accommodations may work (and don’t forget that California courts recognize leave as a reasonable accommodation).
Create (another) paper trail. After you confer with the employee, send another correspondence outlining what you discussed, whether you reached a viable solution, and what action steps you both have to take going forward. Make sure that you have made every effort to reach a viable resolution before determining that there is no accommodation. Consult with a human resources expert or employment attorney prior to making the final determination.
In summary, the duty of accommodation is continuing; it doesn’t stop after the first request or the first meeting. Each employee and her circumstances will present unique sets of problems that require constant vigilance, attention, and awareness on the employer’s behalf.