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Brandon M.
Brandon M., Counselor at Law
Category: California Employment Law
Satisfied Customers: 12237
Experience:  California licensed attorney
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in California. my friend is covered by FMLA and also I think

Resolved Question:

in California. my friend is covered by FMLA and also I think ADA. the company has accomodated her shift but now wants to change the deal. they are offering her a shift change to late third shift, 2:00am to 10:30 am! she currently works 2:30pm till 11:00 pm which is working well for her severe migrain headaches. they used to have her working till 11:00 some nights then show up at 8:00am the next day which triggered her headaches. since on the new schedule her attendance has improved to almost perfect. the doctor wrote a note saying the 3rd shift is out of the question and it would be better for her to start later in the day as she is now. the compant is not negotiating in good faith as they are still pushing the 3rd shit ("you will get used to it") and the only other offer is another job with reduced about 25% reduced pay or same job part time with no medical benrfits. I don't believe it is a problem for them to give her the shift as they are in the process of redoing all the shifts in her dept right now. they just fired the driver on the third shift and no one wants that shift. I thought they had to keep same benfits and pay unless it could be showed that it has nothing to do with her using FMLA or ADA. I think they are trying to push her out because othey don't want to accomadate her.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Brandon M. replied 2 years ago.

Brandon M. :

Hello there.

Brandon M. :

Thank you for that information. I believe that I understand the situation, but I am not clear on how I might help and I do not want to make assumptions. Did you have a question that I might answer for you?

Customer:

yes sorry for the delay I had to transfer some money to my card.

Customer:

can they force her to the shift the doctor says she should not be on. and can they offer her the lesser paying job or the job with no benefits

Customer:

please come back

Brandon M. :

Hello. Are you there?

Brandon M. :

Well, I am going to attempt to address your question. You can let me know if further information is needed.

Brandon M. :

I will start by saying that, because the nuances of every case are different, you should not rely on this information as advice or apply it to a specific situation without a more thorough consultation with counsel. But that said, as you are likely already aware, the ADA applies to all employers, and the employer's obligation under the ADA is reasonably accommodate the disabilities of its employees.

Brandon M. :

A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. It is interpreted quite broadly--it can include adjustments to the employee's schedule, changes to the employee's workload... it is pretty much exactly whatever is "reasonable".

Brandon M. :

So I am not in a position to medically evaluate your friend, but to the extent a disability interferes with someone's ability to do their job, the employer is obligated to reasonably accommodate the employee.

Brandon M. :

Let me know if further clarification is needed, and please keep in mind that the experts are not credited for unaccepted answers; even where every problem cannot be solved, my hope is that you can at least feel confident in your knowledge. Please remember to click accept once you are finished. Thank you.

Expert:  Brandon M. replied 2 years ago.
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Customer: replied 2 years ago.
how does one come to an agreement on what is reasonable with the employer? aslo please answer the questions fom earlier. can they force her to take the lower paying job or the one with no benefits. also if they say they have nothing else how does one make them prove it. can she get ca stae disability if they let her go? can they let her go at all with out some kind of outside resolution. can she file with the eeoc right now?
Expert:  Brandon M. replied 2 years ago.

Sometimes the parties can both act in good faith but they still can't agree. When that happens, and when no compromise can be reached, we have the courts to settle those types of disputes. I know the law, but your friend knows the facts about the day-to-day operations of her job and the resources of her employer--she would know better than me if her requests are reasonable.

 

You asked "can they force her to take the lower paying job or the one with no benefits." I may not have been clear. The employer is obligated to reasonably accommodate the employee--taking a lower paying job or demoting to a job with no benefits is not a reasonable accommodation.

 

You asked several other questions that I am happy to address to the extent possible:

 

1. "can she get ca stae disability if they let her go?"

 

A. Anyone who meets the state's criteria for SDI may collect. Generally, the function of SDI is to provide a partial income substitute for those who are unable to work due to their disability. If she can work in another capacity, she might instead collect unemployment, but SDI is a possibility as well.

 

2. can she file with the eeoc right now?

 

A. Yes. Whether she should is a question of tactics, but she can file with either the EEOC or the DFEH.

Customer: replied 2 years ago.
WE ARE CLOSE! how can she get them to diclose why it may be unreasonable accomodation if they say it is? even if she thinks it is not. are they obligated to state in writing why it is not reasonable?
Customer: replied 2 years ago.
Relist: Incomplete answer.
how does one get the employer to reveal why they think an accomodation is unreasonable
Expert:  Brandon M. replied 2 years ago.

The employer generally does not have to reveal why they believe an accommodation is unreasonable before the commencement of a lawsuit, but it works to their disadvantage if they do not explain. Let's say that someone matching your description robbed a bank and you were pulled over while driving your car. You did not rob the bank, but in your vehicle, you had a firearm, mask, and a bag of cash. You would not be obligated to explain yourself, but it would probably be advantageous for you to do so at some point if you did not want to go to prison. An employer generally does not have to explain their rationale, but not doing so generally works to their disadvantage.

Brandon M., Counselor at Law
Satisfied Customers: 12237
Experience: California licensed attorney
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