California Employment Law
California Employment Law Questions Answered by Legal Experts
I am terribly sorry to hear that your daughter is in this situation. The good news, is that there may be some recourse available to her. Under the ADA, her employer must engage in "the interactive process" where they discuss a reasonable accommodation which would work for both her and them. As long as she is still able to do all of the essential functions of her job, with accommodation, then they would have to grant this to her. Failure to do this, would result in your daughter being able to bring a discrimination claim against them. Some examples of possible accommodations which courts have held to be acceptable, would be allowing her to work a flexible work schedule so that she may work more hours on "good days" and fewer hours when necessary, restructuring the job description to eliminate non-essential functions, or providing her with the ability to take naps when needed. If there is a vacant, or soon to be vacant position this could be considered a reasonable accommodation.While she would still have to perform the essential functions of her job, she would be able to do it with a reasonable accommodation. She should speak with her doctor concerning possible accommodations which would allow her to get her work done. The law states:"To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations."If her doctor is unable to come up with other suggestions concerning how she could do the essential functions of her job, with a reasonable accommodation, she can contact the California Department of Rehabilitation to speak to a professional evaluator who can give her additional suggestions.Under the law, an employer must make reasonable efforts to determine the appropriate accommodation for her. They must consult with her, and give primary concern to her preference. If they fail to do this, and terminate her employment after she has given them an option that would not cause an undue hardship to them, then she could file a complaint with the DFEH, or EEOC for disability discrimination.If they fail to make a good faith effort to find a reasonable accommodation that would work for her, she should consider getting an employment attorney involved. If she decides to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Have her consider consulting with two or three different attorneys prior to selecting the one she feels most comfortable with. In a case where an employer fails to engage in the interactive process, an attorney would likely take her case on contingency, which means that she would owe nothing out of pocket.
So, in short, the employer must engage in the interactive process with her, where they discuss the essential functions of her job, and how she would able to accomplish those tasks with an accommodation that would work for her illness. If they fire her before exhausting all options, then they have engaged in disability discrimination, and your daughter would be entitled to compensation for any lost wages, emotional harm, and any other pecuniary expense as well as be entitled to her job back.
Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you. Have a wonderful rest of your day.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).