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Tina, Attorney
Category: California Employment Law
Satisfied Customers: 33167
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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I am in California working for an employer that had previously

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I am in California working for an employer that had previously approved allowing me to work 4 days a week 32 hrs/week; which is consider full time with benefits.
However, due to some physical limitations (double knee replacement surgeries), I am unable to work 5 days/week; only 4 days/week.
My employer sent me an email below stating I will be converted to a per diem basis with no benefits or continuing full time employment if I fail to work 5days/week.
What are my legal options? Thanks.

"Our business and customer needs dictate that your position must be 5 days per week and 40 hours per week. Based on that requirement, it is necessary for you to begin scheduling yourself accordingly beginning, no later than, Monday, November 26, 2012.

If you are unable to meet this scheduling requirement, you do have the option of changing your employment status to per diem. If you do not schedule yourself 5 days and 40 hours per week beginning November 26, 2012, your employment status will be changed to per diem on that date."
Hello and welcome,

I am sorry to hear of your difficult situation. I am working on your answer now and will post it here shortly.

Hello again, Dan.

Pursuant to state and federal law, if an employee requests a reasonable accommodation that is not an undue hardship to the employer (which usually means it is too costly), the employer must provide the reasonable accommodation to the employer.

Since it sounds as though you do have a disability, the ADA would typically provide this protection. If the employer could reasonably cover the additional 1 day that you are not able to work without incurring extraordinary costs, they would typically be required by the ADA to provide the requested accommodation in your work schedule (4 days instead of 5 per week).

Since they have been providing it, that would normally indicate that it is NOT an undue hardship unless their circumstances (customer needs) have recently changed significantly.

If the employer refuses to provide the requested accommodation (which should be made in writing and retain a copy of it for your records), then it would be best to promptly retain a local attorney to represent you in resolving this matter.

If the attorney is not successful in resolving the matter, then a charge of discrimination should normally be filed with the EEOC/state Fair Employment and Housing Commission.

Here is a link that provides additional information as to what may constitute a reasonable accommodation under the ADA:

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