Disability
Common violations
dENIAL OF lEAVE
Failure to accommodate
No Interactive Process
lACTATION lAWS
School Activities leave
ADA Violations
Disability discrimination occurs when an employer treats a qualified employee or applicant unfavorably because they have a disability. It is also unlawful to treat a qualified employee or applicant less favorably because of a history of disability, because of the employer’s belief that the individual may have a disability, or because of the individual’s relationship with a person with a disability. California has a number of laws that protect the rights of disabled employees in conjunction with and in addition to the American with Disabilities Act (ADA).
In California disabilities are broadly defined as conditions that limit a major life activity, Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Conditions include physical and mental disabilities, as well as medical conditions such as cancer or HIV/AIDS. California definitions and protections can be broader than protections under federal law.
The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
See EJP’s disability related Infographics below
Reasonable Accommodations
Accommodations are adjustments to how an employee with a disability or serious health condition works or the work they do in order to enable the employee to continue to work. This may include adjustments to how an employee works, where an employee works, and/or the tools an employee uses to work. Some common accommodations are as follows:
Leave - time off of work
Adjustment of start and end times for work
Increased or extended breaks
Change job duties
Relocating the work area
Access to tools or equipment to enable an employee with a disability to do their job
The employer must respond to requests for accommodations that will enable someone with a disability to be able to perform their duties. An employer may not make a blanket statement that the employee cannot return to work unless they can return to full duty without accommodations. Rather, the law requires that an employer engage in a timely, and good faith, interactive process in determining what appropriate accommodations may be available to help the employee do their job and great consideration must be given to the employee’s suggestion. This process can clarify what job functions are essential, what accommodations are possible, and whether accommodating an employee with disability will be an “undue hardship” to the business operation.
An interactive process should be a back and forth, ongoing conversation between the employer and employee on the accommodations that are needed. The goal is to try to find a reasonable accommodation, that is not overly burdensome on the employer, but makes it possible for employees to work or work without pain. An example of an accommodation is a cashier, with a leg injury that makes them unable to stand for long periods of time, being permitted to use a stool while checking out customers and/or to take additional rest breaks when feeling tired or in pain. The employer may require certification from your doctor regarding appropriate accommodations or what tasks an employee can and cannot do and whether the considered accommodations will solve the issue.
Leave as a reasonable accommodation
Under the Family Medical Leave Act (FMLA) an employee with a disability may be entitled to take job protected leave from work as a reasonable accomodation. That is time off work where their job is protected because the employer must hold the job open for the employee upon return to work. A covered employer is one who has at least 50 employees within a 75 mile radius of the work site. A qualified employee must have been employed for the company for 1 year and must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave. Under FMLA an eligible employee may take up to 12 weeks of protected leave for the following reasons:
Care for one’s own serious medical health condition or that of a family member
Birth or adoption of a child
Qualifying exigency related to a spouse, parent, son or daughter on or called to active duty service.
The employee may be required to provide a doctor’s certification, but the process cannot be overly burdensome on the employee. The 12 weeks may be taken continuously (in one 12 week block of time) or may be taken intermittently (separate smaller blocks of time) or on a reduced schedule. The leave is unpaid and the employer may ask the employee to use acquired sick leave, vacation time, other paid time off or some combination thereof to cover the leave. An employee must give the employer reasonable notice in advance of their need for leave (typically around 30 days), however, under foreseen circumstances such as an emergency, the advance notice requirements may not apply.
Upon return from leave an eligible employee must be restored to their original job or equivalent job with the same pay, benefits, and other terms and conditions of employment. An employer may not interfere with, restrain, or deny the exercise of any right under FMLA. An employer also may not discharge or otherwise discriminate or retaliate against a person who has exercised or attempted to exercise their rights under FMLA. While pregnancy itself may not be considered a “disability”, complications from the pregnancy that affect a major life activity may be covered. FMLA can be complicated, however a Labor & Employment attorney can assist you in understanding your rights and responsibilities in your specific situation.
Leave laws often include an anti-retaliation requirement that states that an employee may not be treated poorly because they requested or took leave or utilized accommodations. Additionally an employer may not interfere with an employee taking leave. This includes discouraging an employee from or making it unnecessarily difficult to take leave. It also includes disturbing an employee while on leave. Further, an employer may not fail or refuse to promote or train employees who take or request leave. Leave and accommodation law can be complicated. A Labor and Employment Attorney can help you sift through the law, facts, and evidence to determine if you have a claim.
Additionally, the ADA in some cases can extend the 12 weeks of protected leave provided under the FMLA or apply when an employee has not yet qualified for protections under the FMLA. Disability law can be complicated. A Labor and Employment Attorney can help you sift through the the law.
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Laws protecting California Employees From
Disability Discrimination
There are several laws which protect California employees from wage & hour violations. Here are a few:
Title VII of the Civil Rights Act of 1964
Fair Employment and Housing Act (FEHA)
Unruh Civil Rights Act
Disabled Person Act
Americans with Disabilities Act (ADA)
Family Medical Leave Act (FMLA)
California Labor Code 230.8
Healthy Workplace Health Families Act
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How Can The Employment Justice Project Help?
There are several ways that the Employment Justice Project can help. Every case is different and while EJP can make no guarantee of results in your specific situation, here are a few examples of the assistance EJP may be able to provide:
Listen
Counsel and Advise
Request and review employee file and payroll records for evidence of violations
Review medical documentation
Interview witnesses
Educate you on your rights and possible claims
Educate your employer on your rights and their responsibilities under the law
Advocate for reinstatement
Advocate for resolution of your claims
Negotiate recovery of lost wages and penalties
Negotiate terms of settlement or severance agreement
Negotiate a neutral reference
Litigate, if needed and appropriate
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