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Two Disability Accommodation Cases to Consider

I recently had the opportunity to advise several clients—both employers and employees—regarding their rights and obligations when it comes to a disability accommodation. It is an area that is frequently misunderstood. It’s no wonder so many employers make correct disability accommodations for employees with disabilities. The following two published cases are good examples of how employers and employees can make mistakes.

Castro-Ramirez v. Dependable Highway Express, Inc. 246 Cal.App.4th 180 (2016)

Luis Castro-Ramirez worked for Dependable Highway Express, Inc. as a truck driver.  Luis’ son became ill requiring daily dialysis.  According to the evidence presented, Luis was the only one who could be available to do the dialysis. For several years, Dependable Highway worked with Luis and scheduled him so he could be at home during the evening when it was time to administer the dialysis.  When a new supervisor took over, however, he assigned Luis to a night shift. When Luis had to choose between his son’s dialysis and his job, he chose his son. The supervisor told plaintiff he “had quit by choosing not to take the assigned shift.”

Is An Employer Required To Provide A Disability Accommodation To A Non-Disabled Employee, But Who Needs The Accommodation To Care For A Disabled Child?

According to the California appellate court, although it is a “seldom-litigated cause of action,” an employee who needs to assist a disabled son can proceed with an “associational disability discrimination” claim. Prior to Castro-Ramirez, no published California case had determined whether employers have a duty under FEHA to provide disability accommodations to an applicant or employee who is associated with a disabled person. The Castro-Ramirez court held that “FEHA creates such a duty according to the plain language of the Act.”

The court was not persuaded by cases interpreting similar claims under the federal Americans with Disabilities Act. According to the court, “under the ADA, employers need not provide reasonable accommodations to employees who are relatives or associates of the disabled. FEHA’s language is simply not parallel to the ADA in this regard.”

If an employee requests disability accommodation, even if the accommodation is not related to the employee’s disability, employers need to consider whether the law requires the employer to provide the disability accommodation.

Mendoza v. The Roman Catholic Archbishop of Los Angeles 819 F.3d 1204 (9th Cir. 2016)

Alice Mendoza worked full-time for a small parish church as a bookkeeper. She took sick leave for ten months, during which the pastor of the church took over the bookkeeping duties himself and determined that the job could be done by a part-time bookkeeper. When Mendoza returned from sick leave, there no longer was a full-time bookkeeping position, so the pastor offered her a part-time job, which Mendoza declined.

Mendoza sued alleging she the church violated the ADA by discriminating against her and failing to provide a disability accommodation.

Does An Employer Have To Keep A Full-Time Position Open As A Disability Accommodation Even If The Position Does Not Require Full Time Work?

According to the Ninth Circuit, unless the employee can show the employer changed the position to part-time because of the employee’s disability, or that there was another full-time position available that the employee could perform, there is no claim under the Americans with Disabilities Act.

The 9th Circuit first determined that “Mendoza failed to raise a triable dispute as to whether the Archbishop’s legitimate, nondiscriminatory reason for not returning Mendoza to fulltime work was pretextual,” and therefore could not establish a discrimination or disparate treatment claim.  The court went on to say Mendoza “failed to establish that a full-time position was available,” and therefore could not establish a failure to accommodate claim.

Just because an employee is on a medical leave of absence as a disability accommodation does not mean the employer cannot make changes to the employment.  An employer cannot make changes because the employee went on a disability leave of absence, and the employer is still required to provide a reasonable accommodation for the employee, but the employer does not have to keep a position open that is no longer necessary.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

 

 

More Local Paid Sick Leave Ordinances

 

Over the last few years, several cities and counties in California have passed ordinances requiring paid time off or paid sick leave for employees.  California employers are still trying to figure out how to comply with California’s paid sick leave law (aka: Healthy Workplace Healthy Family Act).  Santa Monica, Los Angeles, San Diego, and Long Beach have added their own sick leave ordinances, and San Francisco has amended its sick leave ordinance, making it that much more difficult for employers to comply with the sometimes contradicting requirements.  Below are brief highlights the new/amended local ordinances.

Amended San Francisco Paid Sick Leave

Effective January 1, 2017, San Francisco’s paid sick leave law is amended in an attempt to better align its provisions with California’s paid sick leave law. The amendments provide that San Francisco’s sick leave begins to accrue upon the commencement of employment, but employers may limit usage until after 90 days of employment.  The amendments allow employers to “advance” the sick leave at the beginning of the year instead of permitting employees to accrue the time. This is treated as an advance, temporarily halting accrual until after working the number of hours necessary to have accrued the advanced amount, at which point accrual resumes.  However, unlike the grant method under California’s paid sick leave law, employers  still have to allow employees to carry over unused sick time to the following year.  I suspect this will continue to cause problems for San Francisco employers, and doesn’t really address the accrual versus one-time grant problem.

The amendments also change to the definition of “family members” for whom time may be used, expands the permitted uses to include preventative care and time for purposes related to domestic violence, sexual assault, and stalking suffered by the employee, clarifies how and when sick leave must be paid, requires written notice to employees regarding available balances of paid sick leave, and, like California’s law, requires reinstatement of unused sick leave if an employee is rehired within one year of separation.

San Francisco is usually pretty good about providing FAQ’s about their ordinances, so I suspect the city will publish material to help guide employers in the near future.

Los Angeles Paid Sick Leave

Covered employees: Employees who work two or more hours in a particular week in the City of Los Angeles

Effective date: Businesses must comply with the sick leave requirements starting July 1, 2016

Accrual rate: The ordinance provides that paid sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of paid sick leave for every 30 hours worked

Accrual cap: Employers may implement an accrual cap of 72 hours of accrued paid sick leave.  Accrued time must be carried over from year to year

Usage cap: Employees must be permitted to use up to 48 hours of accrued sick leave each year

One-Time Grant: Instead of permitting employees to accrue paid sick leave, employers may grant the full amount of leave at the beginning of each year, and if they do so, the time need not carry over from year to year

Usage: Employers may prohibit employees from using any accrued paid sick leave until after the first 90 days of employment

Leave to care for others: In addition to the persons identified in the California sick leave law for whose care employees can use sick leave, the ordinance permits employees to use sick leave to care “for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship”

Santa Monica Paid Sick Leave

Covered employees: Employees who work two or more hours in a particular week in Santa Monica

Effective date: Businesses must comply with the sick leave requirements starting January 1, 2017

Accrual rate: The ordinance provides that paid sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of paid sick leave for every 30 hours worked

Accrual cap: Employers with 26 or more employees shall provide at least 40 hours of paid sick leave as of January 1, 2017 (note, however, that the California law requires employees be permitted to accrue up to 48 hours) and at least 72 hours of paid sick leave as of January 1, 2018

Employers with 25 or fewer employees shall provide at least 32 hours of accrued paid sick leave as of January 1, 2017 and at least 40 hours of accrued paid sick leave as of January 1, 2018 (remember: California law requires employees be permitted to accrue up to 48 hours)

Accrued time must be carried over from year to year

Usage cap: Unlike the California sick leave law, the ordinance does not permit a usage cap

One-Time Grant: Instead of permitting employees to accrue paid sick leave, employers may grant the full amount of leave at the beginning of each year, and if they do so, the time need not carry over from year to year

Usage: Employers may prohibit employees from using any accrued paid sick leave until after the first 90 days of employment

San Diego Paid Sick Leave

Covered employees: Employees who, in one or more calendar weeks of the year, performs at least two hours of work in the City of San Diego

Effective date: The voters of San Diego approved the paid sick leave ordinance on June 7, 2016.  Under San Diego election laws, the law will take effect on the date the City Council adopts a resolution declaring the result of the election.  It is assumed this will occur sometime in July

Accrual rate: The ordinance provides that earned sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of earned sick leave for every 30 hours worked within the geographic boundaries of the City of San Diego

Accrual cap: Employers may not implement an accrual cap; employees must be permitted to continue to accrue earned sick leave.  Accrued time must be carried over from year to year

Usage cap: Employers may limit usage of earned sick leave to 40 hours per year

One-Time Grant: The law does not expressly provide for a grant of earned sick leave

Usage: Employers may prohibit employees from using any accrued earned sick leave until after the first 90 days of employment

So far, Oakland and Emeryville have not changed their paid sick leave ordinances. None of the local ordinances require employers to pay out unused paid sick leave upon termination. However, if an employer allows employees to use paid sick leave for purposes other than sick leave, the employer could turn the paid sick leave into a paid time off policy which would have to be paid out at the end of the employment.

California employers with employees working in any of the cities above should review their paid sick leave f policies to evaluate whether they comply with both the state and municipal sick leave ordinances.  Businesses with employees in multiple cities should either adopt a different policy for employees in certain cities or create a single policy complies with whichever municipality is the strictest.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Inability to Work Under Particular Supervisor Not a Disability

A California court recently reaffirmed that the inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of job performance—is not a disability recognized under California’s Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).

Higgins-Williams worked as a clinical assistant for Sutter Medical Foundation’s Shared Services doing patient intake. In 2010, Higgins told her doctor she was stressed because of interactions at work with human resources and her manager.  Her doctors diagnosed her as having adjustment disorder with anxiety, and Higgins went on a stress-related leave of absence under the California Family Rights Act and the Family Medical Leave Act. The doctor reported Higgins’ disabling condition as “…stress[] when dealing with her Human Resources and her manager.”

When Higgins returned to work, she received her first negative performance evaluation since she began working at Sutter.  Higgins believed she was being singled out, and that her supervisor “was curt and abrupt with plaintiff, while being open and friendly with plaintiff’s coworkers, and gave plaintiff a disproportionate share of work.”  Plaintiff requested a transfer to a different department for “…forever”), a schedule of 9:00 a.m. to 6:00 p.m., and another leave of absence.  Plaintiff made the requests in order to accommodate her alleged disability: adjustment disorder with anxiety.

Sutter granted the leave of absence, but refused to transfer her to a different department with a different manager.  Higgins’ doctor continued to extend the leave of absence because Sutter never agreed to transfer Higgins to a different department with a different manager.  The doctor opined that although Higgins could return to work as a clinical assistant, the doctors was concerned about Higgins’ ability to do so in the same department as her regional manager.  Sutter eventually terminated Higgins because there was no indication Higgins would ever be able to return to her job.

Inability to Work Under Particular Supervisor Not a Disability

Higgins sued Sutter for disability discrimination and failure to accommodate.  The appellate court held:

An employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a disability under FEHA, citing Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 628 [“the inability to perform one particular job, or to work under a particular supervisor, does not constitute a qualified disability” under FEHA].

Because the court determined the plaintiff did not have a “disability,” the remaining disability-related causes of action were dismissed.

California and federal law define “disability” very broadly, but that doesn’t mean every stress or anxiety requires an accommodation.  When the requested accommodation is a different supervisor, courts are reluctant to hold an employer liable for disability discrimination.  Employers must take every request for a disability accommodation seriously.  When properly conducted, the employer and employee should engage in an interactive process to determine what reasonable accommodations will enable the person to perform the essential functions of the job.

The Nuddleman Law Firm represents employers and employees regarding disability accommodations and discrimination.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Disability Discrimination Plaintiff Not Required to Prove Ill Will

Sheriff’s Deputy Dennis Wallace brought a disability discrimination case against the County of Stanislaus (County) under FEHA (Government Code section 12940) after the County removed him from his job as bailiff and placed him on an unpaid leave of absence.  Wallace wanted to continue doing his job, but the County believed Wallace could not safely perform the job. At trial, Wallace was able to show he could safely perform the job with accommodations. The County argued that even if it was wrong, the mistake was reasonable and Wallace could not prove animus or ill will.

Court Incorrectly Held Disability Plaintiff Must Prove Animus or Ill Will

The trial court believed the employee had to prove “animus or ill will” in order to prevail.  The trial court modified the jury instruction (CACI No. 2540) to include a requirement that Wallace prove County regarded or treated him “as having a disability in order to discriminate.”

On appeal, the court concluded the jury instruction and special verdict form contained error.  The proper standard regarding employer intent or motivation was decided by the Supreme Court in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris).

Animus or Ill Will Not Required.

Disability Plaintiff Protected from erroneous or mistaken believes About Employee’s Ability to Perform the Job.

Under Harris, Wallace could prove the requisite discriminatory intent by showing his actual or perceived disability was a “substantial motivating factor/reason” for County’s decision to place him on a leave of absence. California law does not require an employee with an actual or perceived disability to prove that the employer’s adverse employment action was motivated by animosity or ill will against the employee.  Instead, employees are protected from an employer’s erroneous or mistaken beliefs about the employee’s physical condition.  (§ 12926.1, subd. (d).)

In short, the Legislature decided that the financial consequences of an employer’s mistaken belief that an employee is unable to safely perform a job’s essential functions should be borne by the employer, not the employee. Even if the employer’s mistake was reasonable and made in good faith, the employee is not required to prove the employer’s decision was motivated by animus or ill will.

The court remand Wallace’s disability discrimination claim for a retrial limited to determining the amount of damages resulting from County’s decision to place Wallace on an unpaid leave of absence.  The court believed a limited retrial was appropriate because the jury found that (1) County regarded or treated Wallace as if he were disabled, (2) Wallace was able to perform the essential job functions of a deputy sheriff with or without reasonable accommodation, and (3) County failed to prove Wallace’s disability would increase the danger to himself or others while he performed those job functions.

The court held that as a matter of law, the reason the County placed Wallace on a leave of absence was its mistaken belief that he could not safely perform the essential job functions of a deputy sheriff.  Therefore, the substantial-motivating-reason element was proven.  The court also found, as a matter of law, that the County’s decision to place Wallace on leave was a substantial factor in causing Wallace to suffer economic losses.  Based on those findings, the court determined the retrial could be limited to the amount of Wallace’s damages.

The lesson for employers is to not presume an employee is unable to safely perform the essential functions of the job just because the employee has a disability.  Placing an employee on a leave of absence against the employee’s will when the employee can perform the essential functions of the job with a different accommodation could lead to significant liability.

Wage Deductions for Exempt Employee Absences

Wage deductions for exempt employee absences

Most exempt employees must receive a guaranteed salary. The employee is paid for the work performed, not the hours worked.  This means an exempt employee gets paid the same amount regardless of whether s/he works 8 hours a day, or 1 hour a day.  Employers that fail to pay the exempt employee’s salary risk losing the exempt status, and possibly subjecting the employer to significant overtime liabilities.

So, when can you an employer make wage deductions for exempt employee absences?  There is a useful DLSE Opinion Letter on the topic, but weeding through the 13-page opinion letter and the letter that prompted the opinion is not easy.  Hopefully the following provides some clarification for employers and employees regarding when an employer can make wage deductions for exempt employee absences.

Full Week Deductions are OK

If an exempt employee performs no work in a workweek for “personal reasons” and does not have vacation or PTO to cover the time off, the employer does not have to pay the employee’s salary for that week.  If the employee has available accrued PTO or vacation pay, the employer can require the employee to use the available PTO/vacation.  If the employee does not have sufficient PTO/vacation to cover the full week, the employer can just pay the available PTO/vacation and does not have to pay wages for the rest of the week (because the employee has performed no work).

There are a few exceptions: If an employee misses work for a protected reason, such as jury duty, attendance as a witness, or temporary military leave, the absence is not “personal” time off and therefore the employer is obligated to pay the exempt employee for the full workweek

Deductions from Vacation/Paid Time Off/Paid Sick Leave Balances

Employers can require employees to use available vacation, paid time off or paid sick leave balances before taking unpaid time off or to cover partial day, full day or full week absences.  Employers should not, however, require an employee to use Paid Sick Leave under the Health Workplaces Healthy Families Act unless the absence is for one of the reasons specified in the Act.

Full Day Deductions — Personal Reasons

If an exempt employee performs no work in a workday for personal and has no accrued vacation or PTO, then the employer can deduct the equivalent of one day’s pay from the exempt employee’s salary.  Caution: The employee must perform no work—this means no emailing, no phone calls.  If the employee performs any work, the employer must pay the employee’s full salary.

See the exception above about absences that are not for “personal reasons.”

Partial Day Deductions — Personal Reasons

If an exempt employee works any portion of a work day, the employer must pay the employee’s full salary for that day. However, an employer can require the employee to use available vacation or PTO to cover the hours not worked. (Conley v. Pacific Gas & Electric Co., 131 Cal.App.4th 260 (2005) and Rhea v. General Atomics, 227 Cal.App.4th 1560 (2014)).  The employer is not reducing the employee’s salary—it is just requiring the employee to use available PTO/vacation.

For example, if an employee works two-hours, then leaves for the day, the employer can require the employee to use 6 hours of vacation/PTO to cover the absence.  The employee receives his/her full salary and therefore the employer is not making a wage deduction for exempt employee absences.

If the employee does not have available vacation or PTO, the employer cannot make a wage deduction for a partial day absence.

Full Day Deductions – Paid Sick Leave

Every California employer must provide mandatory paid sick leave (PSL) benefits as of July 1, 2015. The PSL law specifies the different reasons for taking PSL, and if an exempt employee takes a full or partial day absence under the mandatory PSL law, the employer can charge the absence against the exempt employee’s accrued mandatory paid sick time.

But what if the exempt employee does not have any more PSL?  Employers can make wage deductions for exempt employee absences of one full day or more caused by sickness, an accident or a disability if the employer has a “bona fide plan, policy or practice of providing compensation salary loss due to sickness, accidents or a disability.” Since every employer is required to provide PSL, presumably every employer has a qualifying plan, policy or practice.  Of course, this assumes the employer actually adopts and complies with the Healthy Workplaces Healthy Families Act.

Partial Day Deductions – Paid Sick Leave

If the exempt employee is only absent part of the day due to sickness or illness, and the employee has exhausted his/her available PSL, the employer may not deduct the remaining time from the employee’s salary.  For example, if the employee works two hours, and then goes home sick, but does not have sufficient available PSL to cover the absence, the employer is still required to pay the employee for the full day.

Other times when an employer can make wage deductions for exempt employee absences

There are a few other odds and ends when an employer can make wage deductions for exempt employee absences without violating the “salary” rules:

  • Employers do not have to pay the full week’s salary for the first and last weeks worked if the employee only works a partial day.
  • Absences under the FMLA are specifically unpaid absences, and therefore an employer can deduct for partial-week, and possibly partial-day absences, covered under FMLA.
  • If an employee is sent home for a safety-infraction, the employer may not be required to pay the full day’s or full week’s salary.

Recap

Any time you deduct money from an employee’s wages, you run the risk of violating the law.  Employees who do not receive the wages they are expecting are more likely to seek outside assistance.

  • Employers do not have to pay the week’s salary if no work is performed during the workweek.
  • Employers may deduct for full day absences caused by “personal reasons” or if the employee takes time off for an illness and the employee has exhausted his/her available PSL.
  • Employers should not dock an exempt employee’s salary for a partial day absence. If the employee does not have sufficient vacation/PTO or PSL to cover the missed partial day, the employer should pay full day’s salary.
  • The employer can require an employee to use available vacation/PTO or PSL for partial day absences (the PSL minimum increment is two hours).
  • Do not deduct from the employee’s PSL balance unless it is for one of the reasons specified in the Health Workplaces Healthy Families Act.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Employee Threatening to Kill Co-workers Not a Qualified Individual With a Disability

Although Timothy Mayo was diagnosed in 1999 with major depressive disorder, medication and treatment enabled him to work for CC Structurals, Inc. without significant incident for many years. In 2010, however Mayo and some co- workers began to have issues with a supervisor who they claimed was bullying them and making work life miserable. In response to a complaint, HR met with Mayo and another employee about the supervisor’s behavior.

According to the court:

Shortly after the meeting, Mayo made threatening comments to at least three co-workers. He told one that he “fe[lt] like coming down [to PCC] with a shotgun an[d] blowing off” the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur. Mayo told another co-worker on several occasions that he planned to “com[e] down [to PCC] on day [shift] . . . to take out management.” He told a third co- worker that he “want[ed] to bring a gun down [to PCC] and start shooting people.” He explained that “all that [he] would have to do to shoot [the supervisor] is show up [at PCC] at 1:30 in the afternoon” because “that’s when all the supervisors would have their walk-through.”

The co-workers, presumably concerned for their safety and the safety of others, reported Mayo’s comments. The employer suspended Mayo after they asked him if he planned on carrying out his threats and he responded that “he couldn’t guarantee he wouldn’t do that.” PCC also notified the police, who questioned Mayo and had him admitted to a psychiatric facility because Mayo, a gun owner, admitted to making the threats and that he had “two or three people in mind,” including his supervisor.

Mayo remained in custody for six days, then took leave under the Oregon Family Leave Act and the Family Medical Leave Act for two months.  Mayo’s doctor cleared Mayo to return to work, indicating Mayo was not a violent person, but recommended Mayo receive a different supervisor.  PCC did not return Mayo to work because, according to PCC, Mayo would not—or could not—guarantee to refrain from similar threats in the future.

Mayo sued PCC contending his termination violated the Americans with Disabilities Act and Oregon’s state-equivalent.  The trial court granted PCC’s motion for summary judgment contending “Mayo was no longer a ‘qualified individual’ once he made his ‘violent threats.’ And ‘[b]ecause Mayo [wa]s not a qualified individual,’ he was not ‘entitled to protection under the ADA and Oregon’s disability discrimination statute.’  The appellate court agreed.

Qualified Individual with a Disability

The court determined Mayo could not even make out a prima facie case of discrimination because Mayo was not a “qualified individual” with a disability.  Under both the ADA and Oregon’s analogous law, “an individual is qualified for a position if the individual, with or without reasonable accommodation, can perform the essential functions of the position.”  The court pointed out that an essential function of almost every job is the ability to appropriately handle stress and interact with others. Citing Williams v. Motorola, Inc., 303 F.3d 1284, 1290 (11th Cir. 2002). “[W]hile an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions (here, at least five times).”

Thankfully, workplace threats are not a common occurrence.  When a person’s threatening behavior stems from an underlying medical condition, an employer is faced with two opposing duties: The duty to provide a safe and healthful workplace and the duty to accommodate persons with disabilities.  Mayo v. PCC Structurals may help employers make appropriate decisions when handling similar issues.

If you, or someone you know, has questions about workplace accommodations, or threats of violence in the workplace, contact an experienced employment attorney.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.