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Total Articles: 22

Caltrans Liable for Failure to Properly Address Employee’s Requests for Accommodation

Kamali v. California Department of Transportation, No. B247756 (March 17, 2015): In an unpublished opinion, the California Court of Appeal recently upheld a jury’s verdict finding the California Department of Transportation (Caltrans) liable for failure to provide a reasonable accommodation and failure to engage in the interactive process.

The Interactive Process Dance, Part Two: What Happens When the Music Stops?

Part one of this two-part series covered the details of the interactive process in California and discussed a scenario in which the employee fails to respond to the employer’s attempts to communicate on an accommodation to his disability. Part two covers two additional scenarios and provides key take-aways to be drawn from recent California court rulings on the interactive process.

The Interactive Process Dance, Part One: What Happens When the Music Stops?

California employers are not only required to refrain from discriminating against any employee on the basis of disability, but they also have an obligation to provide “reasonable accommodations” for employees with disabilities. Additionally, the California Fair Employment and Housing Act (FEHA) provides that to determine whether there is an effective and reasonable accommodation that can be implemented, employers and employees must participate in a mutual, good-faith interactive process. While this sounds like a relatively simple obligation, it has become a topic that often confuses employers and employees alike. In litigation, the issue of the interactive process has become one of the most important aspects for litigants, counsel, and judges. An article in the September 2010 issue of the California Labor & Employment Law Review examined the steps of the interactive process “tango.” This article explores what happens when, for whatever reason, the process comes to an end.

Court of Appeal: No Duty to Remove Essential Job Functions as Reasonable Accommodation and More...

The Court of Appeal in Nealy v. City of Santa Monica upheld summary judgment in a disability discrimination case. The case involved an injured "solid waste equipment operator," which may mean garbage truck operator. Nearly injured his right knee lifting a large bin, leading to several surgeries.

Removing Essential Job Functions Not Reasonable Disability Accommodation under California Law, Court Rules

Affirming summary judgment in favor of an employer on an employee’s disability discrimination claims under the California Fair Employment and Housing Act (“FEHA”), the California Court of Appeal has ruled that the employer was not required to eliminate essential functions of a position as a reasonable accommodation. Nealy v. City of Santa Monica, No. B246634 (Cal. Ct. App. Feb. 13, 2015).

Professor’s Refusal to Undergo Fitness-for-Duty Exam Warranted Termination, California Court Rules

A university properly terminated a professor for failing to undergo a fitness-for-duty examination after he had engaged in instances of threatening behavior, the California Court of Appeal has ruled, affirming a judgment in favor of the University of San Francisco on a professor’s alleged disability discrimination claims under the Fair Employment and Housing Act (“FEHA”). Kao v. University of San Francisco, No. A135750 (Cal. Ct. App. Sept. 2, 2014). Significantly, the Court ruled the University was not required to engage in an “interactive process” before requesting the examination because the professor never sought any accommodation for any disability.

Court of Appeal: Employer's Fitness for Duty Examination Was Justified to Evaluate Workplace Threat

Professor John Kao engaged in a series of confrontations with other academics at University of San Francisco over time. His co-workers became afraid of him. He angrily responded to innocuous questions, and became enraged at colleagues over seemingly benign interactions.

California High Court Rules Undocumented Worker Not Barred from Asserting Disability Discrimination against Employer

An employee who repeatedly falsified his employment status to obtain employment, as his employer learned only after he was laid off a second time and filed suit, was not barred by the doctrines of “after-acquired evidence” or “unclean hands” from asserting claims for alleged disability discrimination against his employer under California law, the California Supreme Court has ruled. Salas v. Sierra Chemical Co., No. S196568 (Cal. June 26, 2014).

WHEN MUST EMPLOYERS PROVIDE A SUITABLE SEAT?

Managers unfamiliar with the Industrial Welfare Commission (“IWC”) Wage Order applicable to their businesses may be unaware that California requires most employers to furnish many employees with “suitable” seats to do their work. The U.S. Court of Appeals for the Ninth Circuit has asked the California Supreme Court to interpret the requirement in connection with pending class action lawsuits. If the California Supreme Court takes up the case, its answers could have significant effect on the structure of employees’ jobs, not to mention the physical layout of workplaces all over California.

Court of Appeal: Request for Accommodation Not Protected Activity Supporting FEHA Retaliation Claim and Much More

The Legislature passed a paid, organ donation leave provision a couple of years ago (Labor Code Sections 1508-13), which became effective January 1, 2011. (The court calls it the Donation Protection Act or DPA) Upon hire in September 2010, Scott Rope told his new employer, Auto-Chlor System of Washington, Inc. that he would need time off in February 2011 to donate a kidney to his sister. When he found out about the new paid leave law, he asked for a longer leave under the new statute.

Organ Donor’s Association-Disability Discrimination Claim Can Proceed, California Court Rules

An employee who told his employer that he would need time off because he intended to donate a kidney to his sister and was fired two days before California’s new Donor Protection Act became effective could pursue a claim for associational disability discrimination under the California Fair Employment and Housing Act, the California Court of Appeal has ruled. Rope v. Auto-Chlor System of Washington, Inc., No. B242003 (Cal. Ct. App. Oct. 16, 2013). However, the employee could not assert a statutory claim under the Michelle Maykin Donor Protection Act, because the Act does not apply retroactively.

NEW DEVELOPMENTS REGARDING DISABILITY ACCESS LAWS AND THEIR EFFECTS ON EMPLOYERS

California employers are required to “reasonably accommodate” disabled employees under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act. Entities operating places of public accommodation – including retail establishments, schools, hotels, restaurants, banks, theatres, and stadiums – also must make their facilities and services accessible to disabled members of the public under the ADA and the California Disabled Persons Act (“DPA”). Businesses are obligated to remove physical barriers – including architectural, communications, and transportation impediments – to ensure access.

Legal Alert: California Expands Protections for Disabled Employees

Key Points: Recent California case law and new regulations stress the importance of the employer's duty to engage in the interactive process with disabled workers who require accommodation. Now more than ever, it is important for employers to review their current policies and procedures to ensure compliance with California's broader disability protections.

Totally but Temporarily Disabled Worker Denied Additional Leave Could Pursue Disability Discrimination Claim, California Court Rules

An employee who was discharged after seeking an extension of his leave of absence was a qualified individual entitled to proceed with his disability discrimination claim under the California Fair Employment and Housing Act, even though he was totally disabled while on leave, where leave may be a reasonable accommodation of his temporary disability, the California Court of Appeal has ruled. Prock v. Tamura Corp. of Am., No. E054185 (Cal. Ct. App. Jan. 25, 2013) (unpublished). The Court found the employee’s receipt of disability benefits did not bar his claims where he also asserted he could have returned to work if given additional leave. It also found the employer failed to engage in the interactive process when the employee requested an extension of his leave. The Court reversed summary judgment in favor of the employer and returned to case to the trial court.

New California Disability Regs Allow Support Animals in Workplace, Mandate Broad Protections for Disabled Workers

California employers should be prepared to welcome support dogs and other animals into the workplace as a reasonable accommodation for disabled workers requiring support under new disability regulations issued by the California Fair Employment and Housing Commission. The new regulations significantly expand protections for disabled workers and outline new requirements regarding reasonable accommodations, the interactive process, and proof of discrimination. The regulations took effect on December 30, 2012. Key provisions are set forth below.

California’s New Disability Regulations: Clarifying the Interactive Process

In October 2011, the California Fair Employment and Housing Commission (FEHC) proposed amended regulations governing disability discrimination, reasonable accommodation, and the interactive process under the California Fair Employment and Housing Act (FEHA).

New California Law Targets Frivolous Disability Access Lawsuits

California Governor Jerry Brown has signed into law a bi-partisan measure that seeks to curb rampant, frivolous Americans with Disabilities Act access lawsuits in the state and expand access to businesses for those with disabilities. This is good news for California businesses. The state reportedly has 12 percent of the country’s disabled population, but 40 percent of the nation’s ADA lawsuits.

"Sitting Down On The Job" – And Not Just In California

You've probably heard a lot recently about employees of retail stores in California standing up for their right to sit down on the job. A California state law requires store employees to be provided with seating under certain circumstances, and the courts there have been busy interpreting and applying the law in response to numerous lawsuits.

REASONABLE ACCOMMODATION AND JOB APPLICANTS

Consider this scenario: An individual calls in response to an employer’s listing for a warehouse position. When asked to come in for a two-hour interview, the applicant mentions having “trouble sitting for long periods” due to his “bad back,” and asks if the interview can be broken up into two, one-hour visits. He also discloses that he never graduated from high school because of a “learning disability,” but states he has great prior experience.

Court of Appeal: No Attorney Present at Plaintiff's Mental Examination

The court of appeal's opinion in Toyota v. Superior Court should be interesting to employment lawyers and maybe to their clients involved in employment litigation.

California Employers Not Required To Accommodate Medical Marijuana Users.

The California Supreme Court recently rejected a lawsuit brought by an employee who was terminated shortly after his employer learned that he had tested positive for marijuana. According to the court, employers have the right to conduct preemployment drug tests and to fire, or refuse to hire, individuals who test positive for illegal drugs – even if they are used for medicinal purposes. Ross v. RagingWire Telecommunications, Inc., No. S138130, California Supreme Court (January 24, 2008).

Preemployment Testing Challenged under Antidiscrimination Laws,

Anti-discrimination laws generally are simple to understand and abide by. Employers are prohibited from making decisions that are based on illegal criteria such as race, sex, or religion. In most cases, there is a straightforward analysis regarding the reasons an employer treated a plaintiff less favorably than a similarly situated co-employee.