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Danz’ Weekly Five Employee Rights Update

In this segment of Danz’ ‘Weekly Five Employee Rights Update’, we aim to provide our subscribers with a healthy dose of educational and timely information from recent cases and new laws. Enjoy.

(1) Understanding Reasonable Accommodation: One of the of the most hotly contested areas within Employee Rights and Discrimination is whether the employer reasonably accommodated an employee’s disability after the employee (a) suffered a disability, and (b) could perform the essential functions of the job with reasonable accommodation. A recent case in the City of Santa Monica pitted a garbage truck operator versus the City. The garbage truck operator was injured on the job and became disabled. Due to his many restrictions, the employee was not able to the heavy lifting, a major job function of a trash collector. Although the City tried to find him alternate positions, it was unsuccessful as he was unqualified. What we must remember from this case is that courts require the disabled employee to perform the essential functions of the job with the help of the accommodation. Therefore, although employees have many rights due from their disability, they are not excused from the essential functions of their job even after they’ve been granted with reasonable accommodation.

(2) Pregnancy Leave Refresher: In California, the two main laws pertaining to pregnancy leave are the Pregnancy Disability Leave Law (“PDLL”) and the California Family Rights Act (“CFRA”). The two leaves of absence may be taken consecutively. Other laws that impact pregnancy leave are the Americans with Disabilities Act (“ADA”), the Family Medical Leave Act (“FMLA”) and the Affordable Care Act (“ACA”).

(3) Under PDLL, a woman who takes a pregnancy disability leave and returns within the four-month period is guaranteed the right to return to her same position. An employer can reinstate a woman who takes a leave to a comparable position only if her same position is no longer available, such as in a layoff. Accordingly, the employer should offer a position that is comparable in terms of pay, location, content, and promotional opportunities unless the employer can prove that no comparable position exists. An employer cannot refuse to return a woman who has taken a pregnancy leave to her original position if they like her temporary replacement better or if while she was out on leave her employer identified performance deficiencies that existed prior to her leave. (Gov. Code, § 12945.)

(4) Under CFRA (baby bonding protection), upon granting an employee a leave, the employer must guarantee reinstatement to the same or comparable position and provide the guarantee in writing upon the employee’s request. Employment in a comparable position means employment in a position that is virtually identical to the employee’s original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, skill, effort, and authority, must be performed at the same or geographically proximate work site, and ordinarily means the same shift or same or equivalent work schedule. (Gov. Code, § 12945.2)

(5) What is Interactive Process? During a typical disability discrimination claim involving disparate treatment or the denial of reasonable accommodation (as covered above), the employer must engage the employee in a collaborative effort called the “interactive process.” Simply put, the employer and employee must, in good faith, collaborate on a solution once the employee shows that a reasonable accommodation would enable the employee to complete the essential functions of a job or an alternate position is available at the time he notified the employer of his return from leave. (Gov. Code §12940(n).)

If you believe that you have suffered from any of the prohibited employer activities discussed above, contact the experienced employment law attorneys at Stephen Danz & Associates in every major city in California to discuss your claim and legal options. See our other practice areas and award-winning blogs.