What Does the District Have to Do Before Putting Me on a 39-Month Re-Employment List?

What has to happen by the school district before it puts me on a 39-Month Re-Employment List? 

California public school employees who are terminated because of an actual or perceived inability to perform their job due to a medical condition must be terminated via a “39-Month Re-Employment List” or “39-Month Re-Hire List.” This applies to teachers or “certificated employees.” (Gov’t. Code § 44978.1.) A nearly identical requirement also applies to custodians, food service personnel, security guards, and other non-teaching staff called “classified employee.” (Gov’t. Code § 45195.)  

Public schools, their human resources and risk management departments, and their outside advisors will frequently skip legally required steps before placing their employees on 39-Month Re-Employment Lists. Employers and their human resources advisors who skip or rush through these steps can be liable for disability discrimination and failure to accommodate under the California Fair Employment and Housing Act. This article provides a preview of what must happen before an employee can legally be placed on a 39-Month Re-Employment List. 

The employee must use up all forms of sick leave, vacation time, and other leaves of absence:

The first requirement is that the underlying employee must have depleted all of his or her entitlement to sick leave, vacation time, PTO, overtime, FMLA, and protected leave under the California Family Rights Act (“CFRA”). This is called “exhausting” all forms of protected leave. Simply put, before terminating the employee via a 39-Month Re-Employment List, the employee must have no other legal basis to stay home from work. Because California public school employees get far more protected leave, sick time, and other PTO than other employees, this is often difficult to do if the employee is medically unfit to work for a period of only several months. This requirement is intended to provide the employee with the maximum opportunity to medically improve so that he or she can return to work instead of being fired.  

Despite this requirement, California public schools will regularly place employees on the 39-Month Re-Employment List despite the employee having hundreds of hours of sick time or other types of protected absences. 

Relatedly, school districts will often force their employees to take unnecessary medical leaves of absence, even when the injured employee is capable of returning to work with basic accommodations. This practice not only undermines this requirement of the 39-Month Re-Employment List, but also violates the California Fair Employment and Housing Act. (2 Cal. Code Regs. § 11068 (c) [“When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.”].) In other words, if an accommodation would allow the employee to return to work, the employer can not force him or her to use up their sick leave. 

To illustrate this common situation, imagine that a school custodian suffered a back injury at work, that the employee improved, but that the employee now has a restriction of no lifting more than fifty pounds. The employee knows from experience that the underlying job does not require him to lift more than 25 pounds alone, and that co-workers can perform a team lift to move objects greater than 50 pounds. However, in abundance of caution the District refuses to allow the employee to return to work until the employee is fully healed. The employee is then forced to remain off work, uses up all of his sick time and protected leaves, and is then placed on the District’s 39-Month Re-Employment List a year later. 

Under these facts, while it is true that the employee “exhausted all entitlement to sick leave”, it was the District that unlawfully forced the employee into that position. Therefore, the custodian’s placement on the 39-Month Re-Employment List was not proper and the District has committed disability discrimination in violation of the California Fair Employment and Housing Act.

For these reasons, school district employees who are forced to take a leave of absence should object as early as possible before their sick time is exhausted, request accommodations, insist on returning to work via emails to human resources, and work closely with their doctors to return to work. This practice can prevent the employee’s unnecessary placement on a 39-Month Re-Employment List.

The District must correctly conclude that the employee is “unable to assume the duties of his or her position”, including that no accommodations are available.

If the employee, through no fault of the employer, has used up all of his or her protected time off work, the employer must next accurately determine that the employee is unable to assume the duties of his or her position. This means that the employee cannot perform the essential functions of his or her job, even with reasonable accommodations. 

School district-employers often mistakenly believe that this step allows them to circumvent the legal requirements to accurately determine the employee’s precise medical limitations, to determine precisely how the actual underlying job functions are impacted by those employee’s medical limitations, and to accurately determine what, if any, reasonable accommodations exist that would enable the employee to perform the underlying job functions. In other words, this step in the 39-Month Re-Employment List process requires a full-blown California Fair Employment and Housing Act analysis and interactive process by the employer. A failure of the employer to do so, or the failure to accurately conclude that the employee is “unable to assume the duties of his or her position” will make the employer liable for disability discrimination, failure to accommodate, and failure to engage in the interactive process under the California Fair Employment and Housing Act. 

So frequently, school district employers are eager to place employees on the 39-Month Re-Employment List and will fail to accurately complete this step of the requirement. This eagerness is often due to pressure from workers' compensation insurance adjusters, third party administrators, perceived financial and budget pressures, and hiring and education benefit deadlines, among other factors. However, ultimately the District’s “motive” does not legally matter. All that an employee needs to prove is that the employee could have continued to perform the essential functions of the underlying position, with or without accommodations, but the employee was placed on the 39-Month Re-Employment List instead.

While all the possible nuances of disability discrimination cannot be discussed in this article, many other articles on this website go into more detail. For purposes of this article:

The employer must accurately identify the employee’s precise job-related limitations:

This means that the employer must identify, correctly, what medical limitations the employee actually has via the employee himself and the employee’s doctors’ notes. This is often easier said than done. 

School district employers will oftentimes rely upon outdated or obsolete doctors’ notes that no longer reflect the improved nature of the employee’s medical condition. Even worse, when workers' compensation is involved, employers will sometimes defer entirely to the opinions of the Qualified Medical Examiner (“QME”) or Agreed Upon Medical Examiner (“AME”), and ignore or not accept notes from the employee’s actual doctors. While QME and AME opinions are important for the underlying workers' compensation case, they are not superior to the opinions of the employee’s regular doctors in the context of the interactive process. 

Even if the accurate and most current medical note is obtained by the employer, the employer will oftentimes fail to understand what the vague or subjective medical limitations actually mean. For instance, if an employee has limitations stating “no repeated bending”, the employer must determine what “repeated” means. How frequently is the employee permitted to bend? How many repetitions per hour are permitted? Is 15 minutes of total bending per day permitted? Is the doctor seeking to preclude a full bend? Or are even partial bends medically prohibited? School district employers so frequently fail to answer these important questions, and will unlawfully place the employee on a 39-Month Re-Employment List based upon exaggerated and rushed assumptions of the employee’s injuries. 

The employer must accurately identify how the employee’s job functions are actually impacted:

Even if the District-employer has accurately identified the employee’s precise job functions, it must then determine how the employee’s essential job duties are affected, if at all. More often than not, school district employers will over exaggerate the physical demands of the underlying job, when the job, in reality, can readily be performed even without accommodations. This is often caused by a determination to fire employees who are deemed susceptible to re-injury in the future and are therefore “liabilities”. It is also driven by the fact that the decision makers responsible for placement of the employee on the 39-Month Re-Employment List work in risk management, human resources, or otherwise have little to no actual understanding of what the underlying job entails. 

Moreover, while an accurate job description or written list of essential functions can help determine how the underlying job is impacted, legally this is only one factor of many that must be looked at. An experienced employee who has successfully worked the underlying position must also be relied upon to determine what job functions are essential and how those functions are impacted by the employee’s medical condition (if at all). In other words, the employee himself cannot be ignored when determining if the employee’s medical restrictions actually matter. 

Frequently, school districts will unilaterally determine behind closed doors that the employee is unable to perform the underlying position with no contribution from the employee whatsoever.

The employer must accurately determine that no reasonable accommodations exist that would allow the employee to continue working: 

Before placing the employee on its 39-Month Re-Hire List, the school district must accurately conclude that no reasonable accommodations would exist that would allow the employee to continue working, even with his or her medical restrictions. 

More frequently than not, employees unlawfully placed on a 39-Month Re-Employment List never needed any accommodation at all. This is because many of the most common accommodation requests are already built into the underlying job and are available to all employees, even those who are not injured. This includes lifting-related accommodations. In an effort to prevent injuries, most school districts have policies that say an employee never needs to lift any amount of weight deemed too heavy by the employee. Similarly, school districts will often have policies or be subject to regulations that already require them to provide ergonomic work stations, provide rest and shade breaks, or allow the employee to alternate between sitting and standing during the employee’s work day. In other words, the employee’s restrictions never mattered in the first place.

Similarly, school district employees are often abruptly placed on the 39-Month Re-Employment List after just a single interactive process meeting with human resources or risk management. This rarely, if ever, will be enough substantive time and opportunity for an employee and employer to have a good faith, back and forth, problem solving discussion to identify potential accommodations. The interactive process is not a “one and done” process. Moreover, employees are often ambushed at these meetings and have had little to no advance notice of the meeting or the career ending consequences that could flow from it. 

In conclusion, while some employees may be so significantly injured that their placement on the 39-Month Re-Employment List is warranted, in the majority of instances this is unlikely to be the case. Employers frequently bypass the rigorous requirements of the California Fair Employment and Housing Act and place the employee unlawfully on the 39-Month Re-Employment List. School district employees who are languishing on a leave of absence, who are asked to attend interactive process meetings, or are threatened with placement on the 39-Month Re-Employment List should contact an attorney as soon as possible. 

Contact the Law Office of Brian Mathias for a consultation. 

What Are Reasonable Accommodations?

Believe it or not, in California it is legal to terminate an injured, sick, or disabled employee who cannot perform his or her job for medical reasons. It is only unlawful to do so if the same injured, sick, or disabled employee can perform his or her job with reasonable accommodations. 

What are reasonable accommodations? In short, reasonable accommodations are changes, adjustments, or modifications in how the underlying job is performed. Accommodations may take the form of a modified work schedule, additional tools that help the employee perform the job, or getting assistance from others in lifting heavy objects, among countless potential examples. In other words, the underlying job is still being completed by the employee, but in a manner that accommodates the injury. There is not an established list of reasonable accommodations. Potential accommodations are determined on a case-by-case, fact specific basis. 

Accommodations are generally reasonable if they do not pose an “undue hardship” to the employer. An accommodation creates an undue hardship if it would be significantly difficult or expensive to the employer. In other words, reasonable accommodations are not deemed undue hardships simply because they cost the employer some money, are time consuming, are difficult, or are hard for the employer to implement. Only significantly difficult or expensive accommodations are undue hardships. As with reasonable accommodations, what constitutes an undue hardship is determined on a case-by-case basis and according to a number of factors, including the size of the employer, the employer’s financial condition, and the impact on the employer’s operations. In the writer’s experience, the undue hardship defense defense is rarely an effective one, especially for larger employers. 

Common types of accommodations include: 

Lifting Accommodations: Blue collar employees, including custodians, often receive back injuries that make lifting painful. Workers’ compensation doctors will commonly give the injured employee temporary or permanent lifting restrictions that recommend that the employee not lift more than 10, 15, 25, or 50 pounds, and/or that the employee cannot be engaged in the task of lifting for more than a certain number of minutes per day. 

Oftentimes, lifting accommodations are only short lived in nature, making them easy for the employer to accommodate. If the employee does not work alone and has co-workers at the same job site, the employee may receive a lifting accommodation in the form of getting assistance from other employees when lifting heavy objects (i.e. a “team lift”.) This type of accommodation is often fully consistent with workplace injury and prevention training (called an “IIPP”) given by the employer on the topic of safe lifting practices. This training, which is frequently given by the employer’s workers' compensation insurance company, often teaches that employees should never lift objects that are subjectively believed to be too heavy for the employee to lift safely. Employees may also receive accommodations for a lifting restriction by working with lighter weight equipment, by reducing the weight of the objects at work that they need to lift, or using equipment like a dolly to move heavy objects. 

Employers and their human resources managers often over exaggerate the frequency that lifting occurs in the job itself and also the weights involved, and similarly place undue weight on inaccurate or old written “job descriptions” that claim lifting is required when it is not. Thus, while human resources will often resist and oppose lifting accommodations, often at the insistence of their workers’ compensation insurer, this typically does not fare well for the employer in litigation.  

Bending and Stooping Accommodations: Doctors, especially workers' compensation providers, will often blindly issue restrictions limiting the frequency of the employee bending or stooping at work. It is unfortunately common for employers to unlawfully and needlessly terminate employees for a bending and stooping restriction. 

Employees can receive an accommodation for a bending or stooping restriction by showing that the job can still be performed without frequent bending or stooping; i.e. the job is, or can be, performed in another manner. For example, an essential function of a school custodian’s job will require picking up trash from the ground. This function could be performed by bending over at the waist and reaching with the hands (a full bend). However, the same function could be performed with a trash grabber, vacuum, or similar tool and eliminate the need for bending entirely.

As with lifting restrictions, employers often over exaggerate the amount of time that the employee spends bending or stooping throughout the day, leading to the employee’s unlawful termination. It is important that the employee, the employee’s medical providers, and the employers work with an accurate description of what the job actually entails, even if that comes from the employee himself.

Remote Work Accommodations: Doctors will sometimes issue work from home restrictions if the employee has suffered a significant physical injury (post-car accident), for sleeping disorders, or psychiatric issues (social anxiety). 

The reasonableness of a remote work accommodation will predominantly depend on whether the employee is engaged in administrative, white collar work that can be performed from a computer with an internet connection. Of almost similar importance is whether the employee or the employee’s predecessor performed the same position on a remote basis for any significant length of time during COVID-19, this will go a long way in establishing that a remote work accommodation is also reasonable. In other words, if the job was previously performed remotely for several years during COVID, it could likely be done so again as a form of a reasonable accommodation. 

Employers, especially California government employers, are more frequently deeming it “essential” for employees to work in-person and denying remote work accommodations on this basis. However, the employer’s opinion in whether in-person work is an “essential function” of the underlying job is just one of several factors ultimately looked at. Moreover, employers are legally prohibited from stating as a matter of policy that any one type of accommodation is automatically unreasonable in all situations. This prohibits employers, by way of a general edict, from prohibiting remote work in all situations no matter what. The employer must engage in individualized assessment to see if remote work is reasonable in the particular case before it. 

Part-Time Work and Demotions: It is frequently the case that an employee is so sick, injured, or disabled that full time work in the employee’s regular job can simply not be accommodated. When this occurs, there are still two available avenues for accommodation that can keep the employee working. 

First, a part-time work schedule, where the employee works fewer hours per day or week, may be a form of reasonable accommodation. Employees who work on a salaried basis may be successful in obtaining this accommodation if the essential functions can simply be performed in fewer hours per day or week during the employee’s disability. Hourly paid employees will typically have an easier time obtaining this accommodation because the employee’s pay is tied to the amount of hours actually worked. 

Second, if the employee cannot perform the current job, with or without a reasonable accommodation, the employee may be given a lateral transfer or demotion to an entirely different position, called a “reassignment accommodation”. For reassignment accommodations, if there is an open and vacant job that would accommodate the disabled employee, the employer must give that disabled employee preferential consideration over all others. In other words, the employer is legally required to discriminate against others in favor of the disabled employee, even if the employer likes other candidates more than the disabled employee. This accommodation can be very successful for employees at large employers, government entities, and school districts that are constantly trying to fill lower ranking positions. Likewise, less skilled and technical employees will have an easier time obtaining a reassignment accommodation than a higher ranking employee.  Importantly, if the employee is provided a reassignment accommodation that results in a demotion, the employee’s pay and salary can legally be reduced. 

Do you have any reasonable accommodation related questions? Contact the Law Office of Brian Mathias. 

5 Things to Do If You Are On a 39 Month Re-Hire List

Public school employees are provided with a number of employment benefits and protections that are not given to employees anywhere else. One such protection is called the 39-Month Re-Employment List. 

What is the 39-Month Re-Employment List?

A school district employee is placed on their District’s 39-Month Re-Employment List if the employee is too injured to continue working and all other leaves of absence have run out. The employee is then placed on a “reemployment list for a period of 39 months” or 3.25 years. 

Employees who are placed on the list receive no pay, no benefits, and do not work for the district and are for most intents and purposes terminated. However, at least on paper, the employee is supposed to be given priority for rehire over other qualified candidates if and when they become healthy enough to work. While it does not matter how the employee initially became injured, the vast majority of employees placed on the 39-Month Reemployment List were initially injured at work and have ongoing workers' compensation cases. 

There are 39-Month Re-Employment List procedures for classified employees (custodians, food service, aides) and also certificated personnel (teachers). (Cal. Ed. Code § 45195 [classified personnel] 44978.1 [certified personnel].)

This article describes five things that an employee should do if they are placed on the 39-Month Re-Employment List or are being threatened with this. 

• Understand exactly what restrictions are being relied upon.

First, the employee should understand exactly what limitations or restrictions are being relied upon by the employer to place the employee on the 39-Month Re-Employment List. 

In order to legally place an employee on a 39-Month Re-Employment List, the employer must correctly conclude that the employee is too injured, sick or disabled to keep working. This presupposes that the employer is referring to and relying upon accurate medical restrictions for the employee. Oftentimes employers rely on outdated restrictions when placing the employee on the 39-Month Re-Employment List or falsely accuse the employee of having “permanent restrictions” that simply do not exist. In other instances, employers will unlawfully rely upon the restrictions from a QME or AME doctor, but will ignore less restrictive and more current limitations imposed by the employee’s actual physician or “Personal Treating Physician” / “PTP”. The employee should seek to understand precisely what limitations are being relied upon.

Relatedly, many medical restrictions will include a time or temporal component. For example a bending restriction will often say, “No bending for more than two hours per day.” Whereas a restriction of “no bending” could be very difficult to accommodate, the restriction of no bending for more than two hours per day is far less enormous. Employers often overlook these temporal qualifiers. 

Lastly, if the employee has multiple medical restrictions, the employee should ascertain exactly which one of those restrictions are viewed as problematic by the employer.

• Determine if the employer has interpreted the restrictions accurately. 

Second, after the employee has ascertained what exact medical restrictions were relied upon by the employer, the employee should determine if those limitations have been interpreted accurately. This is often not as easy as it seems.

For example, restrictions will often include vague descriptions such as “no frequent typing” or “no repetitive bending” or “only occasional overhead lifting”. However, the employer, employee, and medical provider will often not share the same understanding of what these terms actually mean. Because the employer must correctly conclude the employee is too injured to keep working before being placed on a 39-Month Re-Hire List, the employer must understand the precise meaning of these qualifiers before taking action against the employee. If any restrictions are vague and ambiguous, the employer must resolve those ambiguities before terminating the employee. Similarly, the employee may consider getting a follow-up doctor’s note from his or her doctor to clarify these restrictions. 

• Determine if the restrictions are actually relevant to the underlying job. 

Third, after the employee has determined what restrictions are being relied upon and whether those restrictions have been correctly interpreted, the employee should determine if those restrictions are actually relevant to the underlying job. 

Just because an employee has medical restrictions does not mean those restrictions are relevant to the employee’s work. For example, a 25 pound lifting limitation may be highly problematic for a school custodian, groundskeeper, or food service worker, but irrelevant to a speech therapist or teacher who engages in no heavy lifting at work. Unfortunately, zealous school districts and their unscrupulous workers’ compensation adjusters will seize upon irrelevant restrictions in terminating the employees. 

Relatedly, a school district’s human resources department will often rely upon an outdated or generic written job description in determining what the underlying job’s “essential functions” are in the lead-up to an employee’s placement on a 39-Month Re-Hire List. The employee should speak up about any inaccuracies in the job description during the termination and/or 39-Month Re-Hire List process. 

• Communicate to human resources by email. 

Next, the employee that is on, or is threatened with, a 39-Month Re-Hire List should communicate with the District’s human resources department by email. This is especially the case when the employee makes any complaints, corrections, or clarifications concerning the employee’s medical restrictions and the employee’s ability to do the underlying job, with or without accommodations. 

Human resources departments, especially those for the government, are trained to not send information that is bad for them in writing. This confuses the employee and makes it more difficult to sue the employer later on. Similarly, human resources will often send highly inaccurate letters that purportedly “summarize” meetings or phone conversations that occurred between the employer and employee. This is another tactic used by the employer to prevent or defend against a later lawsuit. All such communications should be responded to by a professional, concise, but candid email from the employee.

• Contact an Attorney.

Many times school district employees are placed on 39-Month Re-Hire Lists unlawfully, causing significant economic and non-economic damage to the employee. Employees should proactively contact an attorney that practices California employment law and “disability discrimination” for assistance. 

Are you being threatened with a 39-Month Re-Hire List? Contact the Law Office of Brian Mathias. 

What is an “interactive process” in employment?

In short, an interactive process is the legally required discussion between employer and employee that comes into play when an employee actually has – or is perceived by the employer to have – a physical or mental health condition that makes working difficult (legally called a “disability”).

Legally an interactive process is described as a timely, good-faith, and flexible dialogue between an employer and an employee to identify and assess actual and/or potential “reasonable accommodations” for the disabled employee. A reasonable accommodation is a modification to workplace practices, procedures, or equipment that allows the employee to perform the essential functions of the employee’s job. An employer is legally obligated to provide a reasonable accommodation unless doing so would constitute an “undue burden”, which can be a very difficult standard to meet. If an employee cannot perform the essential functions of their job, even with reasonable accommodations, the employee may be terminated because of their disability. However, if the employee can perform the essential functions of their job, with or without reasonable accommodation, the employee must remain employed and his or her termination would violate California’s prohibition of against disability discrimination.  

To better understand the concept of an interactive process, know that California’s public policy is to keep injured workers in the workforce unless it would be very difficult for their employer to accommodate them. To effectuate this public policy, California requires employers and employees to discuss what potential adjustments or modifications to the job may keep the injured employee working, despite the disability. The requirement of a good-faith interactive process helps assure that employers make the right decision when terminating any disabled employees and that any solutions short of termination may have been duly considered by the employer.

An employer has a very rigorous obligation to have a “timely and good-faith” interactive process with their disabled employees. Any employer with five or more employees can be sued under the California Fair Employment and Housing Act (called “the FEHA” and pronounced “fee-hah”) for failing to engage in an interactive process with their employees.

Employers – both big and small, government and private sector – frequently botch the interactive process. Here are several common ways that employers get the interactive process wrong:

Not Informing the Employee of the Purpose of the Interactive Process Meeting. It is common for employers to hold ambush-style interactive process meetings with their disabled employees. In these instances, the employee is not told what the meeting is about in advance; merely that the employee is required to show up for a meeting, usually with Human Resources. The employee is then asked, on-the-spot, to provide any accommodations or else be terminated.

Conducting an interactive process in this manner deprives the employee of any meaningful context for the interactive process, including that they may be terminated because of their disability if no accommodations are ultimately identified. Ambush-style interactive process meetings also deprive the employee of any ability to prepare in advance for the meeting by speaking with their own medical providers, reviewing medical documentation, and reviewing what their own actual or perceived work limitations are.

Delaying or Rushing the Interactive Process. A lawful interactive process must be “timely”. It follows that the process cannot be unreasonably delayed, nor rushed once it is initiated. When the employee requests an accommodation, or when the employer otherwise believes the employee is disabled, the interactive process must be initiated. Employers cannot lawfully set up disabled employees for failure by delaying an interactive process with the employee, and thereby delaying any requested accommodations that allow the job to be performed successfully.

Similarly, employers frequently try to satisfy their rigorous obligations under the FEHA by attempting to complete the interactive process with a single short meeting or discussion with the employee. The interactive process is not intended to be a “one-and-done” meeting, but a good-faith, problem-solving process that takes as long is required to identify effective accommodations. After reasonable accommodations are identified, they must be tried out to assess their overall effectiveness, and if ineffective, the accommodations need to be adjusted via one or more additional interactive process discussions..

Not Understanding the Employee’s Precise Medical Limitations. As part of the interactive process the employer is required to identify the employee’s precise medical limitations and identify how those medical limitations actually impact the employee’s underlying job.

Too frequently, employers will rush the process without understanding what the employee’s actual medical conditions are, such as terms used in a doctor’s notes or workers’ compensation reports (i.e. “PQME Reports”). Failing to identify the precise limitations often cause employers to over-exaggerate the gravity and seriousness of sometimes very minor medical limitations that do not at all affect employee job performance. Firing an employee based upon incorrect and exaggerated beliefs constitutes disability discrimination, even if the employer’s express motive was to protect the employee from future injury.

Not Understanding the Actual Job Functions. Disabled employees are often terminated when their actual health limitations do not actually impact their ability to work. For example, it is likely unimportant that an administrative assistant or office worker - has a 30-pound lifting limitation, a typically sedentary position that does not require any heavy lifting.

Employers will frequently fail to identify what the underlying job physically actually requires of their disabled employee during the interactive process, causing the employer to terminate based off bad information. This situation typically arises when executive level employees, such as Human Resource officers or workers’ compensation insurance adjusters, decide to terminate without knowing what the employee’s job actually entails (called “the essential functions”), typically after relying upon a generic, outdated, or inaccurate job description. The same employees are terminated without the employer actually speaking with the employee or the employee’s immediate supervisor about what is physically required of the employee.

Not Offering Any Employer-Provided Accommodations. The interactive process is intended to be a two-way street. Both the employer and the employee must participate in the process in good-faith. Employers too frequently will place the burden of identifying potential accommodations entirely on the employee. Merely asking the employee if any reasonable accommodations exist will not likely satisfy the employers rigorous obligations under the FEHA, especially in the context of a rushed interactive process. Further, if the employee cannot continue to perform their current job with or without accommodations, employers are required to provide the employee with any open, vacant, and funded positions (called a “reassignment accommodation”). The employer must then consider whether the disabled employee can perform the essential functions of those open, vacant and funded positions with or without accommodations.

  Has your employer botched your interactive process? Call the Law Office of Brian Mathias.

What is disability discrimination?

Disability discrimination is the most common type of reported discrimination in employment, according the Department of Fair Employment and Housing. So, what exactly is disability discrimination in employment?

Disability discrimination is more easily understood as “health, illness, or injury” discrimination. Disability discrimination does not require that you be “disabled” in the ordinary sense of the word. You do not need to be confined to a wheelchair or blind to be “disabled”.  A legal “disability” is much broader than the ordinary definition. Disabilities are a physical or mental impairment that makes the performance of a “major life activity”--including working--difficult.

As examples, low back pain, a diagnosis of cancer, Carpal Tunnel Syndrome, and depression could all be “disabilities”. Similarly, there is no requirement under California law that a disabled person be prevented from working. The disability merely needs to make performance of working difficult. There is no requirement that that a legal disability be caused by working or that it is an “industrial injury”. Thus, an injury received outside of work while playing soccer or hiking may also be a disability.   

Next, disability discrimination in employment may only occur in an employer-employee relationship. This means that properly classified independent contractors may not sue for disability discrimination. Similarly, a qualified employer under the Fair Employment and Housing Act (FEHA) must have five or more employees. However, the “five or more” requirement is also construed broadly, and includes certain part-time employees. This makes California’s version of disability discrimination much broader than the protections through the Americans with Disabilities Act (the ADA).

Disability discrimination next requires that the employer “knew or thought” the employee to have a disability. Therefore, to be liable for disability discrimination the employer must know that the employee is actually disabled. However, an employer’s willful ignorance of an employee’s disability may meet this requirement under the FEHA. Nevertheless, it is important for disabled employees to inform their employers that they are actually disabled, preferably in writing.

Next, California’s public policy is to keep injured or disabled persons working if they are able to perform the “essential functions” of their job. This is even the case if keeping the injured person working is expensive, time consuming, or difficult for the employer. So, if a disabled employee could perform the essential functions of their job “with or without a reasonable accommodation” the employee may still have a case for disability discrimination.

As an example, take the imaginary case Johnny the Janitor. Johnny has chronic low back pain. Johnny is in lots of pain at work at Acme Co., where Johnny works as its only janitor. As a janitor, Johnny’s “essential job” duties include prolonged mopping and lifting 60 pound trash cans into a dumpster. Johnny cannot continue to perform his job without a workplace modification, called an “accommodation”.

However, Johnny informs his manager, in writing, that he simply needs to take periodic five-minute sitting rest breaks every two hours when his back is in extreme pain. Johnny also tells Acme Co. through its Human Resources Department that his coworker, Sally the Security Guard, will assist him in lifting the 60 pound trash cans into the dumpster. This will only take 30 seconds of Sally’s time. In other words, Johnny can perform the essential functions of his job so long as Acme Co. provides him with the requested “reasonable accommodations”.

Next, disability discrimination requires an “adverse employment action”. The most common form of adverse employment action is termination of employment. However, an adverse employment action also includes the denial of a promotion, a demotion, disciplinary write-ups, a cut in hours or pay, and other negative employment actions.  

Disability discrimination next requires that the employee’s disability was a “motivating reason” for the employer’s adverse employment action.  More clearly put, the termination needs to be caused, at least in-part, by the employee’s disabled status.  However, this does not require the employee alleging disability discrimination to show that the employer hates, dislikes, or intentionally wants to harm disabled persons.  

As an example, let’s take another look at Johnny the Janitor. Instead of providing Johnny with the “reasonable accommodations” that Johnny requested, Acme Co.’s Human Resources Department terminates Johnny. Human Resources tells Johnny, “We can’t allow you to work with a bad back.” Even though Acme Co.’s motives may be pure, their statement to Johnny is evidence that his termination was motivated by his disability (the bad back).  This is all that the FEHA requires.

Johnny is now unemployed. He has suffered “special damages” caused by his termination in the form of  lost wages, his 401k plan, and lost health benefits. Significantly, Johnny has also incurred “general damages” in the form of depression, stress over finances, and embarrassment.  Special and general damages are both recoverable under the FEHA. By satisfying the element of “damages”, Johnny has established a great case for disability discrimination.

For any questions on disability discrimination, accommodations, or wrongful termination, please call Brian Mathias Law, serving both sides of the Monterey Bay.

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