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The Law Requires Accommodating an Employee – Going Beyond the Strict Limits of Family Leave or Pregnancy Leave!

9 Mar

What do you do when employee has been out on pregnancy leave is unable to return to work? What if this employee has used all the time available under California’s Pregnancy Discrimination Leave (PDL) and California’s version of Family Medical Leave (FMLA) – known as the California Family Rights Act (CFRA)?
A California court answered that question in the past few weeks in no uncertain terms. The employee is entitled to reasonable accommodation of disabilities and protection from pregnancy discrimination. Sanchez v. Swissport, Inc., (2013). Recently enacted PDL regulations also specifically address this issue and mandate the same conclusion.
Ana Fuentes was employed as a housekeeping employee. Ana’s physician determined that she had a high-risk pregnancy requiring bed rest for the entire duration of the pregnancy. After 4 months’ time, Ana still had approximately three months until the anticipated delivery of her baby.
Unfortunately Ana’s employer fired her. She sued the company, alleging pregnancy discrimination and failure to accommodate. Ana claimed that her employer did not contact her or try to engage in a good faith interactive process to determine whether there were any available accommodations for her continuing disability, including extension of her leave.
The Court of Appeal ruled that an employee who is disabled by pregnancy is entitled to the four-month PDL leave entitlement in addition to other rights afforded by FEHA, including the right to a reasonable accommodation of her disability so long as the reasonable accommodation does not impose an undue hardship on her employer.
California’s new pregnancy disability regulations, which took effect on December 30, 2012, also deal with this issue, specifically providing that the right to four months of pregnancy disability leave is “separate and distinct” from the right to take a leave of absence as a form of reasonable accommodation for a disability.
So, what is an employer to do? If you terminate an employee who has finished her PDL but still can’t return to work because of health issues, you run the risk of a lawsuit.
What should an employer do in this situation to try to avoid a legal misstep?
• Engage in the interactive process with employees who are unable to return to work. Meet with them and ask them what limitations they experience in their ability to work and what suggestions they have. (You do not need to respond immediately, but you do need to listen and give their ideas consideration.)
• Assess what accommodations might work.
• Seek legal advice before making a decision to terminate the employee, even when you believe further accommodation poses an undue hardship. Such a decision exposes you to significant liability risk.

If You Want To Protect At-Will Status You Have to Put It in Writing

16 Dec

I recently assisted a client in the termination of a long term employee who had become a cause of dissension in their office as well as a significant expense.  In talking with the – about to be ex-employee, he said, “but I was told several years ago that I had done such a favor to the owner that I had a job as long as I wanted”. 

There is little doubt that such a discussion probably did occur.  Such informal remarks happen in the workplace, whether intended or not.  Often the owner or manager may not remember them, but the employee involved does.  Later, when discipline or even time to fire the employee arises, all these comments come back to face the employer.

But they do not have to stop a well prepared employer from doing what he has to do to run his business effectively and lawfully.  You do need to have a well written employee handbook, and employee policies, however. 

This was demonstrated again just recently in Faigin v. Signature Group Holdings, Inc.  a California Court of Appeals, 2nd District, decision issued December 5. 2012.

This case involves damages for breach of an implied-in–fact agreement to terminate an executive’s employment only for good cause.  In this instance, the person was fired because the business was in financial trouble and new executives were brought in to replace him.

The Court of Appeals held: “The existence and content of such an agreement are determined from the totality of the circumstances, including the employer‘s personnel policies and practices, the employee‘s length of service, actions and communications by the employer reflecting assurances of continued employment, and practices in the relevant industry.  [Citations] An implied-in-fact agreement to terminate only for good cause cannot arise if there is an express writing to the contrary, such as a written acknowledgement that employment is at will or an at-will provision in a written employment agreement. [Citations]

The court went on to state, “There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results. [Citations]

So, what does this mean for you as an employer:  make sure you have a well written Employee Handbook with an “integrated at-will” provision.  And if you want to learn more about what that means or how to make sure you have one, just call me or email: