California Employees Leaves of Absence, Transfers, Telecommuting and Mental Health Issues

What California Employees Should Know about Workplace Accommodation in 2018: Leaves of Absence, Transfers, Telecommuting and Mental Health Issues
By: Steve Danz, Esq.

What is the status of workplace accommodation in California courts?
California workplace accommodation was a hot area for litigation in 2017; a trend likely to continue in 2018.  Of these matters, most fell under the auspices of the Americans with Disabilities Act (“ADA”) and its California counterparts; Fair Employment and Housing Act (“FEHA”), Unruh Civil Rights Act (“UCRA”), and the Disabled Persons Act (“DPA”). In most cases, the California laws afford individuals better protection from discrimination than is provided under federal law.   It should be noted that leaves of absence are protected both under the federal Family and Medical Leave Act (“FMLA”) and under two California state laws: the California Family Rights Act (“CFRA”) and Pregnancy Disability Leave (“PDL”).   The federal government’s enforcement body for these laws is the Equal Employment Opportunity Commission (“EEOC”); its California equivalent being the Department of Fair Employment and Housing (“DFEH”).

Other highly active areas of litigation are mental-health and workplace stress-related medical accommodations.  These cases are naturally litigious given the subjectivity inherent in assessing these situations and determining causation (or even existence).  Not surprisingly then, employers face difficulty defining exactly what accommodations are reasonable to help the employee perform the essential functions of the job, and what level of hardship they should accept in making said accommodations.

What laws impact leaves of absence?
Leave of Absence laws are defined by the ADA and FEHA.  Under the ADA, covered employers (with 15 or more employees) are prohibited from discriminating against applicants and employees on the basis of disability, and, are required to provide reasonable accommodation to disabled applicants and employees, when accommodations are required due to their disabilities.

Under FEHA, covered employers (with five or more employees) must provide reasonable accommodation to individuals with a physical or mental disability during the application process or while on the job.   Once an employee is on the job, employers must help enable employees to perform the essential functions of their jobs, unless it would cause the employer undue hardship.  The most common types of reasonable accommodation employers make include: providing leaves of absence for personal medical reasons or for taking care of a terminally sick parent, changing job duties or schedules so that employees may telecommute, relocating the work area, and providing mechanical or electrical aids.

In one recent case, a woodcraft worker whose primary job function required he regularly up to lift 50 pounds, took a twelve week medical leave of absence under the FMLA.  During the leave, he underwent back surgery, which required extensive physical therapy.  The employee’s physician advised the employer, in writing, that the employee would not be able to return to work for another two or three months, beyond the initial twelve week FMLA leave. Rather than grant the employee’s request for a leave extension, the employer terminated his employment, but told him that he was free to re-apply for his job once he was medically cleared.  The employee sued, alleging that his employer unlawfully denied him a reasonable accommodation under the ADA and FMLA.  (Severson v. Heartland Woodcraft, Inc.)

What did we learn from recent ADA and FMLA violation cases? We learned that the EEOC and many courts dislike open-ended extensions of leave.  A nonspecific leave of absence or an indefinite, open-ended leave, does not meet the criteria for a reasonable accommodation request.  (https://www.eeoc.gov/eeoc/publications/ada-leave.cfm)

The courts consider the concept of reasonable accommodation as providing means to enabling the employee to perform his or her job.  If the employee cannot perform his or her job because he or she is on an indefinite leave, then an indefinite leave is not a reasonable accommodation.  The best advice, then, for a plaintiff is that they first should have a reasonable request for accommodation; that will trigger the interactive process, during which the employee will discuss with their employer reasonable alternative ways of enabling the employee to return to work.  In California, the absence of an interactive process in and of itself creates a valid claim for violation of the ADA.

What is a reasonable leave of absence under the term “reasonable accommodation”?
Courts have indicated that indefinite leaves of absence are inherently unreasonable.  For example, if a physician’s note does not clearly indicated that the leave is going to enable the employee to return and perform the essential functions of the job by a specified time, then the note creates an unreasonable request by the employee to the employer.  Accordingly, the employer would have the right to deny the reasonable accommodation.  Conversely, the EEOC has repeatedly stated that when there is a finite time period requested for a leave of absence, the employer must reasonably accommodate the leave. In a similar case to the one described above, a nurse was terminated because, after going on leave following shoulder surgery, she was able to return to work within the three month additional leave that was recommended by her physician.  Here, the court held that her termination was unlawful because her extension request for a finite period of leave was not unreasonable.  (Walker v. NF Chipola) The lesson here is to request that physicians indicate a specific amount of time that they believe the employee would need before they are able to return to work.

What is proper medical documentation and fitness for duty under the ADA, FEHA and FMLA?
In a number of recent cases, the courts have had to interpret what may cause workplace violence or when an employee may be a danger to himself or herself.  In one case, co-workers of an employee who suffers from bipolar disorder, reported the employee was seen crying in her cubicle all day for several days and that the employee had spoken openly about walking into traffic.  When questioned by her HR department, the employee indicated that she felt suicidal. Then, HR required her to go home and not return until she completed a psychiatric evaluation and presented a note.  (Barnum v. OSU Medical Center.)

The main question in this situation is whether it was appropriate for the company to send the employee home to get a psychiatric evaluation and not to return without a fitness for duty note.  The test here is whether such action was job-related, and consistent with business necessity in the form of medical inquiry under the ADA.  The EEOC added guidance indicating that an employer may be justified in sending an employee home if that employee is a threat to themselves, not only if they are a threat to others. Courts have generally deferred to the EEOC regulations in agreeing that whether an employee was a direct threat to themselves in relevant.  The lesson here is that the employer must be careful taking action as it can be difficult to discern between actual versus perceived psychiatric conditions or mental health issues.  Further, if the employee did go to a physician and obtained a note but was still terminated, this would create a violation of the ADA and FEHA.

The court held that the facts constituted significant evidence that would cause a reasonable person to inquire as to whether the employee was still capable of performing the essential job functions; therefore the requested medical exam was job-related and consistent with business necessity.  In California, courts have indicated that once an employee returns to work, if there are any outstanding concerns about the employee’s fitness for duty (per the ADA’s fitness for duty test), this would also meet the test under the FMLA.

The EEOC advises to look at specific elements when conducting workplace threat assessments.  Per the EEOC’s interpretation of the direct threat concept, we must look at the nature of the risk, severity of the harm, duration of the risk, the likelihood that it will occur (aka the imminence of the risk), and, the availability of reasonable accommodation.   Thus, a medical examination would be appropriate when an employee exhibits suicidal behavior or has a history of a psychological disability.

How have courts recently interpreted “reasonable accommodation” for mental health disorders?
Over the last decade, many military veterans have returned home from combat, which has created a flow of new mental health disability litigation in the workplace.  In one recent example, a veteran who served in Afghanistan, and who suffered from PTSD, depression and anxiety, was hired by a company to work as a corporate trainer.  He began to experience severe anxiety before conducting major training presentations and asked his employer for accommodations, including the option to telecommute, because he was experiencing severe anxiety.  His employer denied the request because such an accommodation would not enable him to perform his primary job duties of delivering training presentations to the company’s employees.   Courts must weigh whether the company’s position is reasonable in denying such an accommodation.  For example in this case, the Court must determine whether the training presentations could reasonably be performed via video conference or webinars or whether transferring the employee to another, less stressful, position would be reasonable accommodation consistent with the ADA.   In certain circumstances, re-assignment may be a reasonable accommodation as long as it is effective.  Also, companies may not unequivocally refuse to consider a telecommuting arrangement or a transfer.   (Marvin v. Barnett.)