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.
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.
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.
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