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Aug13

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The employer is a small private company in California. The branch office has receptionist and 1-3 professional employees (number varies daily based on client appointments). The Receptionist’s duties include making appointments with clients, answering and making phone calls, faxes, filing, filling forms etc – basic secretarial/admin/receptionist duties. For some time the employee has refused to do some simple tasks ( e.g. bending to pick up something dropped) because of medical pain. The employee finally scheduled hip surgery to improve joint strength and mobility, and ease pain. The employer has instructed the employee to obtain a medical release to return to work, which is expected to be obtained tomorrow. The employee has already stated that a walker is still being used, mobility is not fully regained and expects that the professional staff will continue to do anything that requires lifting, bending, stooping etc. However, the professional staff cannot, because of the nature of their work, delay or disrupt their time with clients. What can an employer do if this employee does return with medical approval but continues to disrupt the professional work of the other employees for assistance with continuing limitations allegedly resulting from the medical condition? The employee has been out for 2 weeks but has not yet filed for CA SDI disability.

There are two federal laws, the FMLA and ADA, and two state laws CFRA and FEHA, to consider.

The federal Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) entitle eligible employees of covered employers to take up to 12 workweeks of unpaid, job protected leave in a 12 month period for specified family and medical reasons. A private-sector employer with less than 50 employees is not covered by the FMLA or CFRA.

The federal Americans with Disabilities Act (ADA) prohibits discrimination against an individual who can perform the essential functions of his job with or without reasonable accommodation. The ADA covers employment by private employers with 15 or more employees.

California’s Fair Employment and Housing Act (FEHA), which applies to employers with five or more employees, prohibits harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave. Employment actions include recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, and terms, conditions, or privileges of employment.

It’s unclear if the employer is obligated to comply with California’s FEHA since only the number of branch employees are mentioned not the total number of employees. However, let’s discuss FEHA since it covers employers with only one employee whenever harassment is at issue.

A covered physical disability under FEHA is a physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. Working is considered a major life activity under the FEHA. Thus, the employee’s condition may be covered as a disability under the broad FEHA.

Under FEHA, employers must engage in an interactive communication process with the employee to discuss reasonable accommodations. A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified employee with a disability to perform the essential functions of a job. Reasonable accommodations can include job restructuring, reassignment, or modified work schedule. Examples of seemingly reasonable accommodations for the employee in question may include purchasing a grabber to assist the employee in picking up any dropped items and/or moving heavier items to a more accessible location for the employee.

An employer is required to provide a reasonable accommodation to an employee with a covered disability unless doing so would cause undue hardship to business operations. Undue hardship means that the accommodation would require significant difficulty or expense. Factors considered include the cost of the accommodation needed, the overall financial resources of the employer, and the type of business. For example, if the employee in question required an additional worker to be present at all times to assist her throughout the day and the employer can’t afford hiring additional staff, an accommodation wouldn’t be required.

The employer must make a good faith effort in communicating with the employee and determining what, if any, reasonable accommodations can be made. Make sure to clearly document all discussions and actions regarding the situation.

Lastly, whether the employee has filed for California short term disability (SDI) benefits is irrelevant. SDI benefits provide wage replacement to employees who become unable to work due to a disability. The program doesn’t offer job protection or reinstatement rights.

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This entry was posted on Wednesday, August 13th, 2014 at 1:32 pm and is filed under
Human Resources Management, Labor Laws.
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