What traps for the unwary may an employee on extended medical leave face?
Our firm recently settled a disability discrimination case against a national company apparently unfamiliar with California medical leave and disability discrimination law. It made every mistake that could be made in respect to disability leave in California. Let’s take a look:
Disability Leave Can Be a Reasonable Accommodation
To begin with, the employer failed to recognize that in addition to FMLA leave, disability leave could itself be a reasonable accommodation. This holds true even if the disability leave extends beyond the twelve-week FMLA/CFRA leave period.
Employer Has a Duty to Seek Out Available Jobs for a Returning Disabled Employee
Second, the national employer failed to recognize that it had an affirmative duty to seek out available jobs for the returning disabled employee. Leaving the employee to seek out another job within the company on his own does not meet California requirements. Spitzver v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389-1390.
For example, if an employer advised an employee to check back and apply for open positions on the company’s career website, the company would not be meeting its affirmative duty. The company itself, must seek out vacant positions for the employee, in which he or she is qualified to perform.
Employees Returning From Medical Leave Must Be Given Preferential Consideration for Open Positions
Lastly, the company accepted applications for open positions from persons outside the company and used these applicants in competition with the employee returning from medical leave. However, employees returning from a medical leave must be given preferential consideration for open positions. Also, they may not be rejected for a position because other applicants are potentially more qualified or have seniority. Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 265.
An employee should bear in mind that the extended leave should not create an undue hardship for the employer, and additionally, it should be probable that the employee is likely to return from their leave. Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.
Contact a Disability Discrimination Attorney Today to Discuss Your Case
If any of the above apply to you, and you believe that your employer termination you in retaliation for needing such accommodations, you may have a case!
Contact steve@stevenrubinlaw.com or call us at (310) 385-0777 to discuss your case!