Sacramento Employment Lawyer

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

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

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

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

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.