California Disability Rights Attorney
Nearly one in every four Californian adults live with a disability. Yet at the time of the last census report, a mere 35% of people with disabilities between the ages of 21 and 64 were employed. Although physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, these numbers reflect the harsh reality that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged economically.
If You Are a Disabled Worker or Perceived to be Disabled, You Have Important Protections Under California Law
California enacted the Fair Employment and Housing Act (“FEHA”) in 1959 to protect workers experiencing discrimination based on their membership in a protected class. The law broadly prohibits discrimination against a qualified individual on the basis of disability as it applies to all aspects of employment. All employees working for companies with five or more employees receive immediate protections under the FEHA.
Workers with disabilities, short and long term, are also afforded protections under the California Family Rights Act (“CFRA”) which requires employers of 5 or more employees to provide an eligible employee with job-protected leave to care for a child, spouse, domestic partner, parent, grandparent, grandchild, or sibling with a serious health condition, and for the employee’s own serious health condition. Employees are eligible for protections under the CFRA if they have one year of service and have worked 1250 hours in the past year (can be non-consecutive).
Is Your Disability Covered Under the FEHA?
In California, disabilities are broadly defined as conditions that limit a major life activity, including 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.
Establishing Disability Discrimination.
The FEHA and ADA prohibits discrimination against an individual because of his or her physical disability, mental impairment or medical condition. There are various ways an employee can prove discrimination based on a disability. One way is to show that the employee was employed by the company, that the company knew the employee had a medical condition that limited a major life activity, the employee was able to perform the essential job duties of his position with reasonable accommodation yet the company discharged the employee, which was a substantial factor in causing the employee harm.
Harassment Based on Disability is Illegal.
FEHA makes it unlawful for an employer to harass disabled employees or applicants because of their medical conditions, physical disabilities, or mental disabilities. To establish a case of hostile work environment disability harassment, an employee must show he or she (1) belongs to a protected group, (2) was subject to unwelcome disability harassment, (3) the harassment was based on disability, (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and (5) that either the employer was on notice and failed to stop the harassment, or the person perpetuating the harassment was a supervisor.
California law prohibits employers from failing to take all reasonable steps necessary to prevent discrimination and harassment. Accordingly, all employers have an affirmative obligation to stop harassment—and face liability if they do not.
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After you contact us for legal help, one of our team members will contact you to begin the intake process. During the intake process, we will collect details about your issue and work with you to identify what type of legal help you may need. During this process we will also identify if your case falls within Avloni Law’s practice areas and whether we have capacity to provide the appropriate support requested.
An Employer is Required to Provide Reasonable Accommodation to a Qualified Employee or Applicant with a Disability.
An employee need only show that the requested accommodation is reasonable on its face, and the employer must either grant the requested accommodation or show special circumstances that demonstrate undue hardship. An undue hardship entails a significant difficulty or expense.
How much are you required to share with your employer about your disability?
While you do not have to share every detail about your disability, you need to provide enough information to show that you have a “disability” under the law and need accommodation. To be safe, you should use words such as “disability,” “impairment,” “limiting,” “major life activities,” and “accommodation.”
You’re not required to produce your entire medical or mental health history, but may be asked for a doctor’s note or other medical documents showing that you have a disability and need an accommodation.
Once you request an accommodation, your employer must participate in a good faith interactive process.
Once you request an accommodation, your employer must make a reasonable effort to determine the appropriate accommodation. This is called the interactive process. You must also be willing to participate in the process of developing and implementing the accommodation. Employees who do not fully participate in the process may lose their rights under disability state laws. This participation may require that you submit requested medical documentation and attend scheduled meetings. If you or your employer rejects a suggested accommodation, you must take steps to continue the process.
Employees seeking accommodation in the form of leave.
For employees seeking an accommodation in the form of leave, while there is no fixed amount of leave time that is automatically deemed to be an undue hardship, indefinite leave is not required. Typically, an individualized assessment is required.
Employee Medical Leave Rights Under CFRA
The CFRA provides 12 weeks of job-protected leave with continuation of health care coverage for: the serious health condition of the employee – but pregnancy, birth, and related conditions are excluded; baby-bonding time within first year (as well as time for adoptive and foster parents); and care of child, parent, grandparent, grandchild, sibling, spouse, domestic partner with a serious health condition. When an employee returns back to work from CFRA leave, they are entitled to return to the same or equivalent position. Note, an employer can require, if this is a regular practice, certification from a healthcare provider that the employee is able to resume work if the employee was on family leave due to his or her own serious health condition.
Is your serious health condition covered under the CFRA?
A serious health condition may involve one of the following:
- Hospital Inpatient Care: care in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care. A person is considered an “inpatient” when a heath care facility formally admits him or her to the facility with the expectation that he or she will remain at least overnight and occupy a bed, even if it later develops that such person can be discharged or transferred to another facility and does not actually remain overnight.
- Absence Plus Treatment:(a) A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves: (1) Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or (2) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
- Pregnancy: Any period of incapacity due to pregnancy or for prenatal care. Note, an employee’s own incapacity due to pregnancy is covered as a serious health condition under FMLA but not under CFRA.
- Chronic Conditions Requiring Treatment:A chronic condition which: (1) Requires periodic visits for treatment by a health care provider, or by a nurse of physician’s assistant under direct supervision of a health care provider; (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
- Permanent/Long-term Conditions Requiring Supervision:A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.
- Multiple Treatments (Non-Chronic Conditions):Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).
Some key distinctions between California and Federal law when it comes to determining what is a serious health condition include:
- FMLA: The treatment by a health care provider must be “in person.”
- CFRA: No “in person” requirement
- FMLA: Incapacity must be for more than 3 consecutive full calendar days
- CFRA: Incapacity must be for more than 3 consecutive calendar days (does not have to be full days.)
- FMLA: Must see health care provider within 7 days of first incapacity (first or only visit).
- CFRA: No requirement that health care provider be seen within 7 days of first incapacity.
- FMLA: Must visit the health care provider 2 times within 30 days of first incapacity, unless extenuating circumstances exist that prevent a follow up visit within 30 days.
- CFRA: No requirement that treatment be 2 times within 30 days of first incapacity.
Serious health conditions, include, but are not limited to:
- Heart conditions/strokes
- Serious infections
- Diabetes
- Alzheimer’s disease
- Pregnancy, miscarriages, morning sickness
- Asthma
- Pneumonia
- Back injuries
- Injuries caused by accidents
- Cancer
- Epilepsy
The following are not serious health conditions:
- Earaches
- Routine dental, orthodontia problems, or periodontal disease
- Upset stomachs/ulcers
- Common cold
- Influenza (unless complications arise)
- Headaches (except migraines)
- Cosmetic Treatments (unless complications arise)
What if you remain disabled after exhausting your CFRA leave?
If an employee has exhausted his or her CFRA leave and needs additional time off due to his or her disability, then an employer must provide disability leave under the FEHA unless doing so would pose an undue hardship for the employer. Under the FEHA, leave is recognized as a form of accommodation, and may apply even when the employer is not covered by CFRA, or when the employee is not qualified for leave under CFRA, or when nan employee has exhausted all leave under CFRA.
Leave qualifies as a reasonable accommodation “when it enables an employee to return to work following the period of leave.” Employees with disabilities may need leave for a variety of reasons, including physical therapy, recuperation from an illness or the manifestation of a disability, obtaining repairs on wheelchairs or other assistive devices, or training a service animal. As with the CFRA, leave may even be intermittent, depending on the circumstances. This can include making modifications to existing leave policies and providing leave when needed for a disability, even where an employer does not offer leave to other employees. As with any other accommodation, the goal of providing leave as an accommodation is to afford employees with disabilities equal employment opportunities.
What if you do not return to work after your CFRA leave?
If an employee does not return from leave for reasons other than the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the employee’s control, the employer can seek to recover the insurance premiums paid while on leave.
California law prohibits retaliation and interference with CFRA leave.
Under the California Family Rights Act employers are prohibited from discriminating against, interfering with, or discharging, an employee for taking CFRA leave. For example, an employer cannot:
- Transfer employees for the purpose of remaining under the eligibility.
- Change essential functions of the job to preclude the taking of leave.
- Reduce an employee’s work hours to avoid eligibility.
- Terminate an employee anticipated to take leave.
Employers also cannot use the taking of leave as a negative factor in any employment action, nor can it be used against an employee under any attendance policy. And all individuals, not just those qualified to take leave, are protected from retaliation for opposing (complaining about) any practice prohibited by the leave law.
Unlawful Pre-Employment Inquiries
Prior to employment, it is unlawful for an employer to require an applicant to attend a medical/psychological examination, make any medical/psychological inquiry, make any inquiry as to whether an applicant has a mental/physical disability or medical condition, or make any inquiry as to the severity of the disability or medical condition. However, an employer may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant’s request for reasonable accommodation or require a medical/psychological examination or make an inquiry of a job applicant after an employment offer has been made but prior to the start of employment provided that the examination or inquiry is job-related and consistent with business necessity and all new employees in the same job classification are subject to the same examination or inquiry.
Do not rely on the above information without consulting an attorney about your rights in your particular situation.
If your rights have been violated you may be entitled to recover damages.
Under state and federal law, you might be able to recover damages, such as emotional distress and lost wages. Additionally, under the FEHA as well as federal law you may be awarded punitive damages as well as your attorney fees and costs if you prevail. If your conditions of employment were impacted by employment decisions based on your disability, you should contact a disability discrimination attorney to learn about your legal rights.
Contact us today for a case evaluation.
If you have been wronged by your employer, you may be scared and unsure of your rights. If you are interested in learning more about your rights, discussing your potential discrimination claims and obtaining legal advice from an employment attorney, please contact the Avloni Law Firm today for an initial consultation.
