Sacramento Employment Lawyer

How Relying too Much on Workers Comp "100% Disabled" Determination gets Employers in Trouble

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One of the mistakes that employers make in the context of disability laws is relying on the determination of their workers compensation administrators too much. One such very common mistake is assuming that just because an employee was determined to be 100% disabled by the workers compensation carrier, he/she is no longer able to work and is not entitled to any accommodations.

In the recenet decision of Couiellette v. City of Los Angeles (2011), the Second Appellate District noted that workers compensation and the disability discrimination protection under FEHA (Fair Employment and Housing Act) require separate inquiries. For FEHA, the question is not whether the Plaintiff is disabled, but whether Plaintiff's medical restrictions prevented him from performing the eseential functions of hte position that he held or that he desired to fill.  Deferring to the workers comp administrator and the workers comp medical evaluations when determining an employee's right to a reasonable accommodations, especially when that employee specifically requested to be considered for a modified duty is not an appropriate approach.

Thus, the Couiellette court made it clear that sending an employee home and not allowing her to work on light duty because she was determined to be 100% disabled by the workers comp carrier, when she was already working on a light duty, was likely in violation of her disability rights. Workers comp carrier is simply is not the right body to determine whether an employee can or should be accommodated and remain part of the company's workforce. 

Requesting Accommodations is Critical to Protecting Your Disability Rights at Workplace

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One of the common mistakes that I see employees with disabilities or serious medical condition make is failing to not only request reasonable accommodations to their disabilities, but not even informing their employers that they have a condition that might need accommodation. It is unfreasonable or even unfair to expect a supervisor or a higher rank management to provide reasonable accommodations to an employee if they are not aware that such need exists.

While the California courts have repeatedly held that no magic words are needed to be said by the employee to trigger the employer's obligation to engage in interactive process to provide accommodations, informing the employer of that need is necessary. 

Some employees are afraid to approach their boss and discuss their disability due to a fear of being disciplined or fired. However, there is simply no upside to not disclosing your need for accommodations, especially if your condition is serious and is likely to aggravate if you continue working without accommodations. If for whatever reason you do not feel comfortable discussing your disability and need for accommodations with your immediate supervisor, approach your human resources department directly or contact them by phone/e-mail if they are located at a different branch of your company. Make it clear that you would like to discuss what can be done to address the challenges you experience in performing your job duties.

Medical Record Confidentiality and Reasonable Accommodation Rights at Workplace

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One of the arguments the employers use in justifying why they did not or should not have known of their employee's disability is confidentiality. When confronted with a claim for failure to accommodate a disability, the employer will often say that they were legally not allowed to access the disabled employee's medical records and therefore they could not have known what was that employee's medical condition. Since the employers only have the duty to accommodate the disability they know of or should be aware of, the issues of access to this information becomes critical during litigation of disability discrimination and disability related wrongful termination claims.

The courts are do not find this argument to be persuasive. Thus, the Northern District noted that although an employer cannot ask an employee for documentation unrelated to establishing the existence of disability and the necessity of accommodation, it surely has the ability to review an employee's record for more information concerning the employee's medical condition in determining whether she possesses a disability and requires accommodations. Rowe v City and County of San Francisco 186 F.Supp.2d 1047, 1054, fn8 (2002). Further, under Cal. Labor Code section 3762(c), a third party workers compensation claims administrator can disclose medical information that is necessary for the employer to have in order for the employer to modify the employee's work duties.

Disability Discrimination Claims Continue to Represent the Majority of Discrimination Claims in California

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Although somewhat outdated, the 2008 statistics from the California Department of Fair Employment and Housing indicate, as illustrated below that in the context of employment, disability claims represent a significant majority of all other discrimination complaints filed with the agency. This is not surprising in part because so many people sustain all kind of injuries at workplace and mostly industrial injuries and repetitive injuries (tendinitis, carpal tunnel, disc bulges). Many of such workers are retaliated against after they take disability leave or file a workers compensation claim. I worked with several managers who appeared to believe that because one of their employees was found to have exaggerated his injuries, all the others who request disability fake their condition. This is a dangerous generalization and mindset on the part of the employer which may result in significant liability in court, especially if the worker who claims disability discrimination is terminated. 

Looking at the statistics below, I was surprised to see that age claims represent such a small minority of claims. I am pretty sure that one of the reasons that a relatively small number of age claims is filed is because they are so hard to prove. Unless there is a clear patter at a company of replacing older workers with the younger ones, or statements by the employer toward the victim that indicate age bias, such as encouraging an older worker to retire, calling him names such as "old time," "father," "old man" and making statements like "we need fresh blood in here" age discrimination is really hard to prove. 

Your Union Collective Bargaining Agreement Does Not Fully Determine Your Disability Leave Rights

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Employees who are union members often face a situation where they sustain an industrial or repetitive motion injury and upon request for medial leave or reasonable accommodation, they are informed by their HR department that they have a set amount of weeks or months of leave, upon expiration of which they will be terminated regardless of the circumstances. This practice is a common mistake on the part of the employers and the unions as it often fails to take into account the fact that state and federal disability laws cannot be circumvented by the collective bargaining agreement or any other agreement. Workers who are otherwise qualified for certain protections, do not waiver those protections just because they become members of a labor union. 

A classic California case on the issue is Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (1995). In that case, an employee who suffered from an injury and a degenerative disc disease was dismissed after exhausting his limited medical leave rights under the union bargaining agreement. At trial, the employer argued that the employee's claims under FEHA for disability discrimination, failure to engage in interactive process and provide reasonable accommodation were completely preempted by the signed agreement, and therefore the employee couldn't sue under FEHA. The ninth circuit court disagreed, analyzing the legal issue extensively and eventually holding that the agreement did not preempt FEHA disability discrimination claims. 

Thus, employees should be aware that their disability rights, and the right to reasonable accommodations due to their physical or mental condition might be more extensive than those provided in the booklet provided by the union.

What are "reasonable accommodations" withing the meaning of California Employment Law

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The main source of interpretation of what "reasonable accommodation" duty is, imposed on the employers with regard to the workers who are disable or who are perceived as having a serious medical condition is Cal. Admin Code, title 2, section 7293.9. This regulation provides that any employer shall make reasonable accommodation to the disability of any individual with a disability if the employer or other covered entity knows of the disability, unless the employer can demonstrate that the accommodation would impose an undue hardship. 

The examples of such reasonable accommodations include but are not limited to making the existing facilities used by employees readily accessible and usable by individuals with disabilities; job restructuring, reassignment to a vacation position, part-time or modified work schedules, acquisition or modification of equipment or devices , adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar actions. 

An employer does not have to provide reasonable accommodations if the it can prove that doing so would impose undue hardship on its operations. Under the same regulation, "under hardship" means an action requiring significant difficulty or expense, when considered in light of several factors, including (1) the nature and cost of the accommodations needed; (2) the company's overall financial resources and the size of the employer; (3) the type of operations involved; and (4) the administrative or fiscal relationship of the facility. By Arkady Itkin, San Francisco Employment and Wrongful Termination Lawyer

When Your Employer Does not Have a Workers Compensation Insurance Coverage

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California Labor Code provides significant protection to employees who sustain an industrial injury and whose employer failed to secure a workers compensation insurance coverage. Under Labor Code section 3706 such an employer will be liable for employee's injuries in tort. That is, under the circumstances, the employer may be sued in negligence for injuries sustained by the employee.  While some injuries at work are relatively light, some injuries can be permanent and debilitating (assembly line type and alike machinery), exposing employer to significant exposure for the injured employee's damages. 

This is yet another reason why the employers who are subject to the provisions of the workers compensation laws are urged to have that kind of insurance coverage.

Asthma and Other Respiratory Diseases Is a Protected Disability Under FEHA

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California employees who suffer from asthma and other respiratory diseases that make them hypersensitive to tobacco smoke might be protected by the California Fair Employment and Housing Act ("FEHA") and entitled to the same protections against discrimination based on medical conditions as other qualifying disabled workers. 

In County of Fresno v. Fair Employment and Housing Commission 226 Cal.App.3d 1541 (1991), the Fifth District reiterated that the California disability laws are to be liberally construed and include protections to workers who suffer from a wide range conditions that limit their life activities, which also includes respiratory activities - functions that affect a person's basic ability to breathe. In that case, the employer - County of Fresno - argued that an employee's hypersensitivity to smoke is merely an "environmental limitation" and not a physical handicap. The court rejected that argument, holding that the Tobacco smoke in the environment may simple be an environmental limitation to those who do not suffer from severe respiratory disorders. However, someone who suffers from respiratory disorder and whose ability to breathe is severely limited by tobacco smoke is physically handicapped within the meaning of the Act.

The above findings triggered the employer's obligations to provide reasonable accommodations as required by FEHA. These accommodations may include, according to court, having smokers use desk top air filtration machines, keeping the windows open, separating the desks for smokers and non-smokers, and alike.