join our network! affiliate login  
Custom Search
GET OUR FREE EMAIL NEWSLETTERS!
Daily and Weekly Editions • Articles • Alerts • Expert Advice • Learn More

Total Articles: 29

Employee Who Failed to Provide Additional Doctor Notes to Support New Restrictions May Still Survive Summary Judgment

Last week, in Thomsen v. Georgia-Pacific Corrugated, LLC, a federal district court in California held that an employer might have violated its obligations under California’s Fair Employment and Housing Act (“FEHA”) when it simply told an employee to return to his doctor to obtain a note outlining additional work restrictions. The Court held that a reasonable jury could find that the employer was obligated to do more than tell the Plaintiff to go back to his physician and get a new doctor’s note, especially because evidence suggested it would have been possible to respond to some of Plaintiff’s concerns without a new doctor’s note.

REASONABLY ACCOMMODATING DISABLED FAMILY MEMBERS

Legislatures and courts in recent years have required employers to recognize the familial responsibilities that affect workers’ ability to work. Expanded sick leave laws now permit employees to take paid time off to care for ill family members. Last year, San Francisco passed the “Family Friendly Workplace Ordinance,” requiring employers to consider flexible schedules that allow employees to meet family care obligations.

EMPLOYERS’ OBLIGATION TO PROVIDE “SUITABLE SEATING”

California employers generally are covered by one or more Industrial and Welfare Commission Wage Orders. The Wage Orders specify minimum requirements for wages, hours and certain working conditions. Most Wage Orders require employers to provide “suitable seats when the nature of the work reasonably permits the use of seats.”

California Supreme Court Takes a Stand on Sitting Down

The California Supreme Court in Kilby v. CVS Pharmacy (opinion here) issued a unanimous opinion interpreting California Wage Orders' (section 14(A)) requirement that employers provide

California Court of Appeal Expands FEHA’s Reasonable Accommodation Requirements to Employees Who are Associated with a Person with Disabilities

In Castro-Ramirez v. Dependable Highway Express, Inc., decided April 4, 2016, the California Court of Appeal for the Second Appellate District held California’s Fair Employment and Housing Act (FEHA) requires employers to provide reasonable accommodations to employees who are associated with a person with disabilities.

ACCOMMODATING EMPLOYEES WHO CANNOT REPORT TO WORK

Employers must provide a qualified individual with a disability (that is, an employee who can perform the “essential” functions of her job, with or without accommodation) with “reasonable” accommodations. When an employee requests extended time off, flexible scheduling, telecommuting, and related accommodations, determining whether the request is reasonable can be complicated.

The California Supreme Court Finally Weighs In on Suitable Seating

On April 4, 2016, the California Supreme Court took a stand by issuing a long-awaited opinion in Kirby v. CVS Pharmacy, Inc. The decision clarifies certain ambiguities in an employer’s obligation to provide suitable seating to employees. At issue was a provision in California’s Wage Orders that requires employers to provide all employees “with suitable seats when the nature of the work reasonably permits the use of seats.” The Court held that “nature of the work” refers to the task performed at a given location where the employee is claiming a right to a suitable seat, instead of a holistic approach. The Court also adopted a “totality of the circumstances” test to assess whether a work location “reasonably permits” suitable seating.

California Supreme Court Tells Both Sides to Sit Down

Executive Summary: The California Supreme Court's recent decision in Kilby v. CVS Pharmacy/Henderson v. JPMorgan Chase has clarified the state's standards concerning when employers must provide suitable seating to their employees. While the holding will permit employees to sit on the job under certain circumstances based on the nature of work actually performed (rather than an abstract, such as a job description), the state high court validated a reasonable interpretation of the requirement that permits employers to use their business judgment (including customer service considerations) and the physical layout of workspaces when determining whether seating is required.

California Supreme Court Rules That Employees May Have Right To Sit During Working Hours

On April 4, 2016, the California Supreme Court ruled that employers must provide an employee with seating if the employee’s tasks at a discrete location make seated work feasible, even if the employee’s job duties include other standing tasks. This ruling is likely to have a dramatic effect on many California employers, particularly those in the retail industry. As a result, you will now have to consider whether the nature of your employees’ work permits work to be performed seated and whether you will have to provide seating (Kilby v. CVS Pharmacy, Inc.).

California Court Finds Duty to Accommodate Does Not Extend to Off-Site Employees Who Fail to Engage in Interactive Process

In this era of rapidly evolving technology, information technology (IT) providers frequently staff their employees at locations where their products are being used. IT providers supply their skilled talent to businesses in various industries, such as healthcare or biotechnology, in order to provide technological support for the use of their products. In such cases, a question can arise regarding the extent of an employer’s duty to accommodate an employee’s disability when the employer is not on-site where the work is being performed. A California Court of Appeal recently confronted this issue in an unpublished case, Poll v. Hewlett-Packard.

Top 10 Mistakes to Avoid During the Reasonable Accommodation Process

The Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) both require employers to make reasonable accommodations for qualified individuals with disabilities, provided that the accommodations do not impose an “undue hardship” on the employer.

Inability to Work Under A Particular Supervisor Is Not a Disability in California

In response to standard negative performance feedback from a supervisor, an employee takes a leave of absence due to stress and submits a medical note stating that the employee must be transferred to another department as an accommodation. Under California law, must a company grant such an accommodation? According to a recent California Court of Appeal decision, Higgins-Williams v. Sutter Medical Foundation, the answer is no.

REASSIGNMENT AS A REASONABLE ACCOMMODATION

Employers often struggle to address conflicts between a supervisor and a subordinate. But what is an employer’s legal responsibility when an employee claims that working for a particular supervisor is so stressful that the employee is disabled and needs to be reassigned as a reasonable accommodation? Recently, in Higgins-Williams v. Sutter Medical Foundation, a California appellate court analyzed this very issue.

Court of Appeal: Claimed Inability to Work With Particular Supervisor Need Not Be Accommodated

An employee clashes with her manager, takes a medical leave of absence for "stress," receives repeated extensions, and her doctor says she can come back to work, but only under a new manager. Heard that one before? That's what Higgins-Williams v. Sutter Medical Foundation is about.

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.

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.

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.

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.

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).

"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.