I have a disability or medical condition: What are my rights at work?
While California law presumes that all employees working in the state are at-will employees, who can be fired at any time and for any reason (at-will employment), The California Fair Employment and Housing Act (FEHA) (Gov.C. § 12900 et seq.) expressly prohibits employment discrimination on the basis of “physical disability, mental disability [and] medical condition …”.
“Medical condition” means cancer or a related genetic characteristic; “physical disability” means any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that both: affects one or more of the following body systems: neurologic, immunological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine; and also limits an individual's ability to participate in major life activities. The laws construe the term “physical disability” broadly to include discrimination due to actual or perceived physical impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. “Mental disability” includes “any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities” that “limits a major life activity.”
An “employer” under the FEHA generally includes any “person regularly employing five (5) or more persons”, the state or any of its political or civil subdivisions and cities, as well as any person acting as an agent for another employer.
The FEHA requires employers to make “reasonable accommodation” for the known disabilities of applicants and employees in order to allow them to perform their position's essential functions, unless doing so would constitute undue hardship to the employer's operations. “Reasonable accommodation” means that employers have an affirmative duty to accommodate disabled workers.
The FEHA and its regulations provide a non-exhaustive list of possible accommodations for employees. They include, without limitation, making facilities readily accessible to and usable by disabled individuals (including by providing accessible break rooms, restrooms, training rooms or reserved parking places, acquiring or modifying furniture, equipment or devises or other similar adjustments), job restructuring, part-time or modified work schedules, reassigning to a vacant position, acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters; allowing assistive animals on the worksite, altering when and/or how an essential function is performed, modifying supervisory methods, providing additional training, permitting an employee to work from home, providing paid or unpaid leave for treatment and recovery, and other similar accommodations.
Further, the law requires employers to engage in an interactive process, whereby the employer communicates with the employee in selecting an appropriate accommodation. The employer must engage in the “timely, good faith interactive process … in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”
Further, that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability if the employer is responsible for a later breakdown in the interactive process.
The employee is responsible for initiating the interactive process by asking for accommodation. However, FEHA regulations require that the employer must initiate the interactive process if: (i) an employee or applicant with a known physical or mental disability or medical condition requests a reasonable accommodation; (ii) the employer becomes aware of the need for accommodation through a third party or by observation; or (iii) the employer becomes aware of the possible need for accommodation because the disabled employee has exhausted leave under applicable federal and state statutes and the employer's leave policy, and the employee or employee's doctor indicates that further accommodation is necessary for recuperative leave or to allow the employee to perform essential job functions.
If you have a disability, or are perceived by your employer as being disabled, and your employer fails to provide you with an accommodation related to your disability, or fails to engage in the interactive process with you to try and find an accommodation that could help you, your employer may be in violation of the Fair Employment and Housing Act.
The above framework and laws will, in all likelihood, apply to employees who have been diagnosed with the COVID-19 virus. Employees who are suffering from COVID-19 must inform their employer of their diagnoses and must ask for accommodation if they need assistance performing their essential job functions due to having contracted COVID-19. If you have been diagnosed with COVID-19 and are, as a result, having difficult with your duties at work, you have rights. Your employer is required to engage in the interactive process with you and to help find a potential reasonable accommodation (for example, medical leave) that will allow you to recover, and then return to your job.
If you have any questions regarding the good faith interactive process and about reasonable accommodations in the workplace, contact the San Gabriel Valley Lawyer Referral Service for a referral to Alex Hartounian, Esq., or to another employment attorney in your area who can help you.