Disability at Workplace

September 14, 2021

Pandemic Related Accommodations At Workplace in California

California employers may need to evaluate new kinds of potential disabilities and requests for accomodations as a result of Covid-19. One possible scenario is an employee’s claim that Covid-19 infection itself is a protected disability as opposed to a temporary illness such as influenza. Employees may also claim that fear of contracting the virus is a disability that must be accommodated. If the employee’s fear is based on an unerlying, qualifying disability that puts an employee at increased risk of severe illness from Covid-19, the employer may need to consider whether reasonable accomomdation is available to address this hightened risk.

Some workers may claim that an employer’s vaccination requirement should not apply to them because of a current medical condition or fear of having an allergic reaction or injury from the vaccine. Employer who require workesr to wear masks or other PPE may be asked to make exceptions to those policies as well. For example, an employee with a latex allergy may seek an accommodation of waering non-latex gloves. Whate the scenario, the same legal principals apply. An employer may require that an employee provides medical information confirming having a disabile condition.

If an employee doesn’t have a disability or sincerely held religious belief for not being vaccinated, there is no obligation on the part of his employer to honor any request for exemption from the vaccination requirement. California employers that do require vaccinations (except for those employing 25 or fewer employees) must provide supplemental sick leave for time spent to receive a vaccine and for any time the employee can work as a result of symptoms related to a Covid-19 vaccine. Employers are allowed to aks why an employee has missed work, and whether the employee is expeirencing Covidf-19 symptoms.

August 26, 2021

Disability Rights in California: One Key To A Successful Interactive Process

by Arkady Itkin

June 13, 2020

Medical Leave Without A Promise of Reinstatement Is Not An Accomodation

by Arkady Itkin

Both California employees and employers must know that an unprotected medical leave without a promise of reinstatement is not an accommodate under California disability laws. An accommodation by definition is a change or adjustment which allows disabled individuals to perform their job. A leave of absence without a corresponding right to return to work is not an accommodation but rather a delayed termination. Burnett v US Air, Inc., 228 F.3d 1105, 1114-5 (9th Cir. 2000). After all, it has been expressly held that requesting an accommodation to a qualifying disability as a protected activity. Head v Glacier Northwest, Inc. (9th Cir. 2005).

All too often, employers “accommodate” an employee by allowing him to go on medical leave and then, upon return, try to get rehired by searching for open, available positions within the company at the time of his return. In many cases, this practice unlawful, as it’s tantamount to terminating an employee and then allowing him the opportunity to apply for an open position, just like any other candidate. On the other hand, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job, if he or she can no longer perform the former job’s duties. Gov. Code 12926(p).

June 15, 2019

Time Off To Be Tested For An Illness May Be A Protected Leave

by Arkady Itkin

The California Court of Appeal has recently issued a decision in the Ross v County of Riverside case, which is quite helpful to those employees who take time off to be tested for a serious illness, whether they end up being actually diagnosed with it or not. The court took a very analytical approach to analyzing that cases’ scenario, arriving to a conclusion that employees tho take time off for medical appointment to determine whether they have certain illness should be treated as if they had a protected disability a workplace.

The court noted as follows: A physical disability under the FEHA includes any physical impairment that affects the neurological or immunological systems and limits a major life activity. (Gov. Code, § 12926, subd. (m)(1).) A physical disability “limits a major life activity if it makes the achievement of the major life activity difficult.” (Gov. Code, § 12926, subd. (m)(1)(B)(ii); Cal. Code Regs., tit. 2, § 11065, subd. (l)(3).) ” W]orking is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad 19 range of employments.” (Gov. Code, § 12926.1, subd. (c), § 12926, subd. (m)(1)(B)(iii); Cal. Code Regs., tit. 2, § 11065, subd. (l)(1)&(3)(D).) Repeated or extended absences from work for medical appointments constitute a limitation on the major life activity of working. Soria v. Univision Radio Los Angeles, Inc. (2016).

A physical disability may be temporary or short term (Diaz v. Federal Express Corp. (C.D. Cal, 2005) and includes not only physical impairments that are actually disabling, but also physical impairments that are potentially disabling or are perceived as disabling or potentially disabling. (Gov. Code, § 12926.1, subd. (b) [“It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling”].) A physical disability is perceived as potentially disabling when an employer regards or treats an employee as having a physical impairment that has no present disabling effect but may become a disabling in the future. (Cal. Code Regs., tit. 2, § 11065, subd. (d)(6); American National Ins. Co. v. Fair Employment & Housing Com. (1982).

December 1, 2017

Legal Protections for Workers with Cancer Under ADA Disability Laws

by Arkady Itkin

The ADA and FEHA (Fair Employment and Housing Act) prohibit discrimination on the basis of an employee’s disability in all phases of employment process – from application, medical exams, hiring decisions, promotions, and of course terminations. Under ADA, disability is defined as a physical or mental impairment that substantially limits a major life activity. These activities include caring for oneself, walking, talking, breathing or working.

An employee may also qualify for disability protection under ADA if he is “regarded as” having an impairment. This protection is especially important for employees who have history of cancer but do not currently have an impairment that substantially limits a major life activity. Employers often incorrectly assume that an employee is unable to continue performing his job after being diagnosed with cancer even if that employee doesn’t (yet) have any limitations at that time. “Regarded as” element of the ADA can be used to provide protections to employees with cancer who do not have a current disability within ADA definition, but still face discrimination based on their diagnosis.

In addition, the ADA Amendments Act (ADAAA) expanded the list of major life activities to include sleeping, concentrating, thinking, communicating, and the operation of major bodily functions. Employees who undergo cancer treatment often have issues with these activities. For instance, typical side effect of chemotherapy are inability to concentrate and memory issues. If these symptoms substantially limit an employee’s ability to think or concentrate, then the employee may have a disability under ADA.

December 26, 2015

One Common Disability Leave Mistake To Avoid

by Arkady Itkin

The most important advice we have for communicating with your employer during your disability leave is doing it in a way that would make it clear to them why and how long you will not be able to work for. While you, of course, have a certain right to medical privacy and confidentiality, the employer is entitled to know that information which is relevant to your limitations and to your request for disability leave under ADA / FEHA or medical leave.

Many employees, while on leave, make this common disability leave mistake of ignoring the employer’s letters that request additional medical information or clarification of previously provided medical notes. This is not a good idea, and this can often give the employer a legitimate reason to terminate an employee who would otherwise have all the protections that are otherwise available to disabled employees.

For instance, suppose you provide your employer some type of medical notes that states that you are sick and you won’t be able to work for 30 days. Your employer is puzzled and they want to know why exactly you wouldn’t be able to work. While they might not be entitled to know your exact diagnosis, they are entitled to know the limitations that affect your ability to work or prevent you from working. For instance, if you need some type of surgery, the employer is not entitled to know what the surgery is, but they are entitled to know that you, for instance, won’t be able to move or walk for a certain period of time.

December 3, 2015

When ADHD Is A Disability Under ADA / FEHA

by Arkady Itkin

In Weaving v City of Hillsboro, the Ninth Circuit Court of Appeal made an important distinction of when ADHD symptoms make it a qualifying disability under ADA and when they don’t. In dismissing the Weaving’s case, the court reiterated that as per the Court’s decision in McAlindin v City of San Diego – interacting with others is a major life activity within the meaning of ADA protections, while getting along with others is not. The Court noted that ADHD is a qualifying disability in those severe ADHD cases, where the condition renders the employee incapable or almost incapable of communicating with the outside world, such as in the case of recurring panic attacks or debilitating anxiety. Therefore, in these kinds of severe cases, the employee will be entitled to interactive process and reasonable accommodations within ADA as any other worker with a qualifying disability under the law.

On the other hand, being disciplined or terminated for simply not being able to get along with co-workers and management but otherwise being able to generally communicate with others in a reasonable, even if not perfect, manner, would not give rise to a disability discrimination claim.

July 29, 2015

When Depression is Not a Protected Disability Under ADA

by Arkady Itkin

A disgruntled employee who repeatedly threatened to shoot and kill his managers can’t sue his employer for disability discrimination even with a depression diagnosis, the Ninth Circuit ruled Tuesday. Timothy Mayo, a welder at PCC Structurals, told at least three of his co-workers that he wanted to bring a shotgun to work and “blow off” the heads of a supervisor and another manager, according to the three-judge panel’s opinion (9th Circuit).

The employee did not sound like he was joking. He went on to discuss the logistics of such an attack, explaining that he would plan to come to the office at 1:30 p.m. because “that’s when all the supervisors would have their walk-through.” Mayo’s co-workers reported the threats, and when the company’s human resources manager asked Mayo whether he actually planned to carry the threats out, Mayo said that “he couldn’t guarantee he wouldn’t do that,” according to the court’s decision. The manager suspended Mayo, barred him from company property, and the company called the police. When a police officer visited Mayo at his home that night to discuss the threats, Mayo admitted to making them and mentioned the people he had in mind. He also admitted to owning several guns, though he had not decided which one to use, according to the opinion. When the officer asked Mayo if he planned to go to the company and shoot people, Mayo reportedly said, “Not tonight.” Mayo was then consensually hospitalized, where he remained in custody for six days before a psychologist cleared him to return to work because he was not a “violent person.” The psychologist did, however, recommend a new supervisor to be assigned to Mayo. Shortly afterward, PCC fired Mayo.

Mayo sued the company in state court, claiming that his firing violated the Americans with Disabilities Act because his threats were symptoms of his depression – a qualifying disability, according to the lawsuit. The case was removed to Federal Court, which ruled that Mayo did not meet the ADA requirement of a “qualified individual” and dismissed the man’s suit. The court stated “an essential function of almost every job is the ability to appropriately handle stress and interact with others.” “And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his coworkers in chilling detail and on multiple occasions.”

May 20, 2015

Inability to Work With a Particular Supervisor is Not a Disability

by Arkady Itkin

Generally, an employee who suffers from anxiety / stress depression as a result of working for a particular supervisor is not entitled to having a different manager as a reasonable accommodation to that disability. This is because inability to work with a specific supervisor is not a disability and does not require accommodation. See Byrnes v Lockheed-Martin (N.D. Cal. 2005).

Courts have routinely found claims of “selective disability” based on a desire not to work for certain people inadequate to demonstrate a limitation on the ability to work. Lancaster v County of Yolo (E.D. Cal. 2007). A disability is a part of someone and goes with her to her next job. A personality conflict, on the other hand, is specific to that individual. Palmer v Circuit Court, Social Serv. Dep’t. (N.D. ILL. 1995). The major life activity of working is not “substantially limited” if a plaintiff merely cannot work under a certain supervisor because of anxiety and stress related issues, such as unfavorable review of job performance. Weiler v Household Finance Corp (1996). Claimant must allege that the particular disability limited a major life activity. Sandell v Taylor-Listug, Inc. (2010).

May 3, 2015

When ADHD Qualifies as a Disability under ADA / FEHA

by Arkady Itkin

In Weaving v City of Hillsboro, the Ninth Circuit Court of Appeal made an important distinction of when ADHD symptoms make the condition a qualifying disability under ADA, and when they don’t. In dismissing Weaving’s case, the court reiterated that as per the Court’s decision in McAlindin v City of San Diego – interacting with others is a major life activity within the meaning of ADA protections, while simply getting along with others isn’t.

The Court noted that ADHD is a qualifying disabilty in those severe ADHD cases, where the condition renders the employee incapable or almost incapable of communicating with the outside world, such as in the case of recurring panic attacks or debilitating anxiety that makes it impossible for an employee to interact (i.e. to even talk to his fellow employees or management). Therefore, in these kinds of severe cases, the employee will be considered disabled under the law and therefore entitled to interactive process and reasonable accommodations within ADA / FEHA.

On the other hand, being disciplined or terminated for simply not being able to get along with co-workers and management but otherwise being able to generally communicate with others in a reasonable, even if not perfect, manner, would not give rise to a disabilitly discrimination claim.