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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 32159
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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My wifes doctor wrote to her employer to move her from the

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My wife's doctor wrote to her employer to move her from the belt that gives her nausea and causes her to vomit at work. The company's response was to give her an application for a leave of absence. She is not ill but that particular belt makes her sick. She has been working there for 28 years in many different capacities and has never asked to be moved from another area of the company. It's only this one that makes her sick. This is a food processing plant so you can imagine the ramifications of employees vomiting on the belt that carries the product to be packaged.The company refuses to transfer her to another department per doctor's orders. Is this legal?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Tina replied 2 years ago.
Hello and welcome,

Is it known why this particular belt makes your wife sick? She does not have a disability?

Does the company have a policy of permitting employees to work in a different area if they cannot work in one particular area?

Customer: replied 2 years ago.
She's not the only one. It's like sea sickness, some have it and some don't. She does not have a disability. They put her in another job but her supervisor told her that it was only for a week then she would have to go back. In the past seniority was used to determine placement. The company is non-union and does pretty much what it pleases.
Expert:  Tina replied 2 years ago.
I see. Thank you for the additional information.

The law that could be used to compel the employer to accommodate your wife's request is usually the American's with Disabilities Act where the employer does not have a policy of providing for such accommodations. However, your wife could only invoke the ADA if she had a disability, such as a condition that affects a major life activity. This type of seasickness that you describe could very well be considered a disability under the ADA since one of the symptoms involves vomiting.

If her physician can indicate that he believes this involves a disability under the ADA, then that would typically invoke her rights under that statute and the employer would be required to provide the requested accommodation unless it is an undue hardship to them, which usually means it is too costly.

Here is a link that sets out what is a reasonable accommodation under the ADA:

http://www.eeoc.gov/policy/docs/accommodation.html

If the company still refuses to accommodate her, then she should normally file a complaint with the HR department and a charge with the state Fair Employment and Housing Commission if the matter is not promptly resolved through the HR department.

If her condition does not fit the definition of a disability under the ADA and there is no employer policy to enforce, then the employer would not be required to provide the requested accommodation unfortunately.


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Tina

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Tina, Attorney
Satisfied Customers: 32159
Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
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