Fired Due to Foot Injury

For most of us, job security is important. Our bank accounts are not large enough to keep us afloat for long if we suddenly lose our jobs and no income is coming in. So, if you are fired due to a foot injury, or another injury or illness, you should Contact the caring and experienced attorneys at Kokozian Law Firm, APC. We may be able to help you.

If you are injured on the job, you have the right to apply for workers’ compensation benefits. You should report your injury immediately. You should take photos of your injury and what caused it, if possible. You should keep note of anyone who witnessed the injury.

If you cannot work for a period because of your work injury, you may be entitled to temporary disability benefits, which function as a substitute for your usual earnings. You may also be entitled to a job-protected leave of absence.

You also have the right to receive medical care paid for by your employer, if needed so you can recover from your work injury and return to work.

If your boss offers to pay you money not to file a workers’ compensation claim, this is illegal and you have the right to say “no.” If your boss asks you to use your own health insurance for treatment of a work injury, you have the right to say “no.”

Accidents happen. Life, for better or worse, is full of the unexpected. You break an ankle while out on a hike over the weekend. You stub a toe on the leg of your coffee table and fracture a bone that makes it near impossible to walk. You tear your Achilles’ tendon while playing tennis. You must wear a cam walker fracture boot for several weeks, or a cast. If you suffer such an injury outside of work, dealing with your employer can be tricky. Because the injury did not happen at work, you will not be covered under worker’s compensation. Unlike with worker’s compensation benefits, your entitlement to state disability benefits for a non-work injury depends on your recent work history.

If you are unable to perform your usual job duties, you may need to go on a leave of absence. You may be entitled to a job-protected leave of absence under the California Family Rights Act (California Government Code sections 12945.1, 12945.2, and 19702.3), or as an accommodation under the California Fair Employment and Housing Act (FEHA) (California Government Code section 12900, et seq.) If the injury prevents you from performing some but not all your job duties, your employer may be obligated to give you a reasonable accommodation (a modification to your job) that will allow you to continue working despite your injury.

Despite the protections afforded by California law for both work injuries and non- work injuries, if you are unable to perform your usual job duties because of an injury you may end up being fired. This is common.

Your boss may be focused on when you can return to work and resume your full job duties, or what work you can perform until you recover fully. Your boss may not want to hire and train a temporary worker to cover your job while you are on leave. Your boss may not want to assign someone to perform those aspects of your job you are unable to perform until you can resume full duty. Your boss may prefer to conjure an excuse to fire you—an excuse fashioned as a legitimate nondiscriminatory reason for firing you, which, if believed, would provide a legal reason for firing you. Your boss may say you’re being fired because your productivity has lagged over the past few months, even though until you broke your foot and took time off from work your boss never mentioned any performance issues. Under FEHA, it is unlawful for your employer to fire you due to a disability. FEHA prohibits discrimination in the workplace based physical disabilities (among other things). And yes, foot injuries that make it more difficult, or temporarily render you unable to work, can amount to a disability under FEHA.

In the Matter of the Accusation of the Department of Fair Employment and Housing v. Hardin Automotive is instructive on the rights of employees and the obligations of employers that can arise in the event of a foot injury.

Andrade was a service advisor for a Hardin Automotive, a GM dealership. Andrade considered himself a member of the “GM family.” He had worked at GM companies for 21 years. His father and brother had both worked for GM. Andrade took pride in being a top service advisor at Hardin Automotive.

On November 16, 2004, Andrade sprained his ankle at home. His ankle swelled and was painful, but Andrade reported to work that morning, using crutches. He already had an appointment with his physician that day for ongoing problems with his knees, so Andrade waited to have his ankle examined at the scheduled appointment.

Andrade was diagnosed with a hairline fracture. A doctor’s note placed Andrade “off work,” finding that Andrade was completely unable to work for the period from November 16 to December 15, 2004. Andrade 's ankle and foot was placed in a cast, and he was discharged.

After his doctor appointment, Andrade returned to the dealership and gave the doctor's note to his supervisor. His supervisor told him to take the time off that he needed.

Effective November 16, 2004, Hardin Automotive approved Andrade for CFRA leave. Andrade was eligible for CFRA leave, having worked at least 1,250 hours for Hardin Automotive in the previous 12 months.

On December 14, 2004, Andrade’s doctor extended his time off work due to his ankle injury until January 3, 2005. Andrade was to return to work on January 3 with a restriction of “seated work” for a period of 30 days. On the same day, Andrade took the doctor’s note to his supervisor. His supervisor told Andrade that they should wait until after Christmas to discuss what duties he could perform, given his medical restriction.

By late December 2004, Andrade was using a cane to walk. On December 30, 2004, he met again with his supervisor. Andrade suggested that he could telephone customers for post-service follow-ups, sell additional mechanical work that had been recommended by other service advisors, or greet customers while on work restrictions. His supervisor rejected these ideas, saying Andrade could not return to the service department until he was “100 percent” able to do his job. However, his supervisor considered permitting Andrade to work temporarily in the sales or parts divisions. These positions were substantively different from Andrade's job as a service advisor, with different duties, work schedules and pay. Andrade responded that he was a service advisor and wanted to return to his regular job.

During the meeting with Andrade, his supervisor decided to fire Andrade, with whom he had personal issues.

On learning he had lost his job, Andrade felt like he had been “punched in the stomach,” with “all the wind knocked out” of him. He felt depressed and in shock. Andrade had enjoyed working in the family atmosphere at Hardin Automotive. He enjoyed social relationships with his coworkers outside the workplace.

Based on these facts, the Department of Fair Employment and Housing (DFEH), which enforces FEHA, determined that Hardin Automotive prevented Andrade from returning to work after his CFRA leave by firing him. The DFEH also decided that Hardin Automotive did not have a legitimate nondiscriminatory reason for firing Andrade during his CFRA leave, as Hardin Automotive failed to show that Andrade would have been fired even if he had not taken CFRA leave. Hardin was ordered to pay Andrade backpay, damages for emotional distress, and costs.

If your employer has fired you from your job due to a foot injury or another type of injury, or if your employer or former employer has otherwise violated your rights under California law, call the experienced employment attorneys at Kokozian Law Firm, APC or Contact Us via our online form.