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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7016
Experience:  Significant experience in all areas of employment law.
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I had my surgical procedure JUNE 23,2013 and was supposed

Customer Question

I had my surgical procedure JUNE 23,2013 and was supposed to go back to work JULY 15,2013..
I got a call from our HR re: do not report to work, we are assessing your condition.[ I have PARKINSONS DISEASE ,and our HR has ben checking on me on and off] Prior to these ,I was asked by our HR to obtain a letter from my attending doctor re:my physical limitations ,I then complied and my neurologist wrote a letter concerning my physical limitatioms : ie. NO REACHING , NO BENDING because iam at high risk for fall which I agree due to my walking and balance problem. I got a letter on 6/26/13, re; I am on FMLA but i have not applied yet, is this right? but i went along with the flow, my FMLA will end this 9/26/13.. I have a feeling that our HR does not want me to go back to work
and these are plan.. my question is,can they terminate on 9/26/13?
Submitted: 12 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 12 months ago.
Good evening and thank you for entrusting me to answer your question. I am very sorry to hear about your health problems and the difficult time your employer is giving you in returning back to work.

As you know, the FMLA only requires an employer to hold an employee's position for 12 weeks. If an employee can obtain a doctor's clearance that they are able to return to work prior to the expiration of the 12 week period, the employer has a legal obligation to return the employee to the same position they were in previously or an "equivalent" position.

Employers are permitted to require an employee to obtain a doctor's note certifying they are able to return to work before permitting the employee to come off of FMLA However, if an employee is unable to obtain a doctor's certification that they are able to work free from restrictions after the 12 week FMLA period has expired, they may have additional protections under the Fair Employment and Housing Act, which requires California employers to "reasonably accommodate" disabled employees' health conditions.

A "disability" under FEHA is any condition which "impairs a major life function," and to the extent that Parkinsons is prohibiting you from returning to your normal job duties, it almost certainly qualifies as a "disability" pursuant to this definition.

If a person is “disabled” in accordance with the FEHA's definition, is having difficulty performing his/her job, and the employer knows that the reason for the difficulty is the employee’s disability, then the employer may have a duty to reasonably accommodate the employee, as long as it will not pose an undue burden on the employer to do so.

A "reasonable" accommodation may include an extension of FMLA leave, a reasonable allowance of absence from work, or some sort of modified work assignments that will allow the employee to remain employed (i.e., work from home or duties that require less physical exertion).

Key here is that the accommodation be reasonable. An employer is only required to provide accommodations that do not impose undue hardship upon it. So, extensive absences far beyond the FMLA period or radically modified job assignments that strain the company would not be a requirement of the law.

Regardless of whether reasonable accommodations are achievable, an employer will ALWAYS be under a legal obligation to engage in an "interactive process" with the employee to determine whether accommodations that would allow the disabled employee to keep their job are feasible.

If your employer fails to engage in this interactive process, that in itself would constitute a violation of FEHA, which would typically be actionable. The fact is an employer cannot know that no accommodations are feasible if they do not make the effort to discuss options with the employee, so termination without engaging in an interactive process will typically be regarded by the courts as wrongful.

If it were me in this circumstance, I would write my employer a letter informing them that my condition constitutes a disability under FEHA and that I am entitled to reasonable accommodations, which include an extension of my protected FMLA leave and perhaps modification job duties, which do not require me to reach or bend.

If you believe that your employer has violated your FEHA rights in their denial of these accommodations, an individual in your circumstance can file a formal complaint of discrimination with California's Department of Fair Employment and Housing. (See here: http://www.dfeh.ca.gov/Complaints.htm)

In short, your employer almost certainly cannot legally terminate you the first day your FMLA expires. They must engage in an interactive process with you to determine how they can reasonably accommodate your health condition. Reasonable accommodations may include an extension of protected leave or modified job duties. A letter to your employer informing them that your condition qualifies for protection under FEHA and demanding that they discuss reasonable accommodtions with you would ordinarily be the best next step forward.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Patrick, Esq., Lawyer
Satisfied Customers: 7016
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 2 other California Employment Law Specialists are ready to help you
Customer: replied 12 months ago.


thank you , that was a good response; I want to inform you that I obtained a doctor' s letter last July 8,2013 re: physical restrictions and i faxed to our HR they responded on it thru letter July 17,20133 stating that they cannot accommodate me since there is no available position to accommodate my needs. is this a sufficient answer?

Expert:  Patrick, Esq. replied 12 months ago.
Sally,

Thanks for your reply. I don't think that's a sufficient answer for a few reasons. For one, as noted above an "accommodation" can be an extension of protected leave. Have they offered that to you? If not, have they demonstrated that an extension will result in undue hardship on the business and thus is "unreasonable"?

Furthermore, simply stated "we can't accommodate" does not satisfy their obligation to engage in an interactive process whereby options are collaboratively discussed. Until that has occurred, your employer's FEHA obligations have not been satisfied.

Finally, even though they may state that they cannot offer an accommodation because no accommodation is reasonable, you are free to disagree with that. Of course, that disagreement would most likely be hashed out in litigation, but it's not as though if a company says they can't accommodate that's the final word on the subject.

If I were in this circumstance, I'd certainly send a letter demanding an interactive, collaborative discussion regarding options such as extended leave. I'd also press my employer to explain WHY a given accommodation poses undue hardship and thus is unreasonable.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Customer: replied 12 months ago.


thank you again.. your answers are satisfying; do you recommend for me to hire a lawyer then? I am just waiting for 9/26/13 [expiry of my FMLA] of what will be the outcome.. by theway I also asked last night if it was right for the company to put me on FMLA without me applying but it was not answered, can you pls answer..

Expert:  Patrick, Esq. replied 12 months ago.
Thanks again for your reply.

Yes, a company can put an employee on FMLA leave without the employee's consent. In fact, employers have a legal obligation to invoke FMLA whenever they have reason to believe that an employee's health condition can qualify. So, they could actually get in trouble for not doing this.

With regard to hiring a lawyer, it may be to your benefit at this stage to retain an attorney for the purpose of writing a letter demanding reasonable accommodations. That will cause your employer to take you much more seriously, but of course with that the dynamic will become a bit more adversarial and contentious. You really need to weigh the pros and cons, but given that your employer has already indicated that they are not going to accommodate you, you probably don't have too much to lose by proceeding a bit more aggressively.

To locate an attorney who can draft this letter on your behalf, CELA is a great resource. See here: http://www.cela.org/?page=4

Most attorneys can write this sort of letter for a flat fee of around $200-300.

If you are actually fired, then I would strongly suggest that you look for legal representation at that point in time. You may at that point have a claim for wrongful termination in violation of FEHA. Attorneys can assist with that sort of claim on a contingency fee basis. If you don't know, a contingency fee arrangement is one in which the attorney receives a portion of the client's settlement or award as his payment, typically 1/3 of the total amount. If there is no recovery, the attorney does not get paid. The client never pays until the settlement or award is obtained (except perhaps to cover the filing costs for his claim).

Again, please let me know if I can provide any clarification concerning the above.
Customer: replied 12 months ago.


thank you again.. my last question, the company that am working with will be under new management this OCTOBER, but the old company still exist; how will it be? will the old company answers for me?

Expert:  Patrick, Esq. replied 12 months ago.

The new management will assume all the obligations of the previous owners. This should have no impact on your FMLA or request for accommodations.

Please let me know if I have misunderstood your question or you require any further clarification. It's my pleasure to assist you.

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