What are My Rights as a Disabled Employee?

As a disabled employee you should be treated with dignity and respect by your employer and fellow employees. Your numerous rights as a disabled employee are found under both federal and California laws.

Of particular importance is the Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996. Among other things, FEHA prohibits Discrimination, including Harassment, Retaliation, and Wrongful Termination, when the employer’s conduct is based on an employee’s Physical Disability, Mental Disability, disability due to a Medical Condition, such as Cancer, or disability arising out of Pregnancy.

Under FEHA, disability is clearly defined.

A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss is considered a disability if it:

1. affects the neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and/or endocrine body system; and
2. limits a major life activity. This is a “physical disability.”

A mental or psychological disorder or condition is considered a disability if it limits a major life activity. This is a “mental disability.”

The term “major life activity” includes “physical, mental, and social activities and working.” See California Government Code section 12926.

FEHA requires employers with five or more employees to Accommodate a Disability if an employee has a disability or a medical condition that renders her unable to perform one or more of the essential functions of her job position. A reasonable accommodation must be provided, unless the accommodation would present an undue hardship to the employer, or unless the disabled employee cannot perform her job safely even with accommodation. A reasonable accommodation is a well-reasoned and logical adjustment made to a job or the work environment associated with that job so that a disabled employee can perform the essential functions of his job position.

Under FEHA, as explained in more detail below, you as a disabled employee have a right to necessary reasonable accommodations for your disability. As a disabled employee you also have a right to a necessary leave of absence for your disability. A leave of absence can either be authorized by a specific statute or can be a form of reasonable accommodation under FEHA. A disability may prevent you from working for a period of time. A disability may prevent you from working your usual schedule, so that you can only work on a limited number of days or for a limited number of hours per day. A disability may prevent you from performing certain of your usual job tasks, or affect the speed or manner by which you perform those tasks.

Reasonable accommodations and leaves of absence rights are there to protect you as a disabled employee whatever your particular circumstances are.

If you are unable to perform certain functions of your job for a period of time but you can otherwise do your job, your employer may be obligated to make a reasonable accommodation (an arrangement or measure) that will enable you to continue working. If you request reasonable accommodations, or if your employer learns that you may require an accommodation, your employer must communicate with you concerning the matter. Specifically, your employer must initiate a timely, good faith, interactive process with you to identify and propose potential reasonable accommodations, and to provide you with any effective accommodation that will enable you to perform the essential functions of your job. This is done by assessing both your job and the limitations caused by your disability. If the accommodation provided proves to be unsatisfactory, your employer is obligated to further engage with you in the interactive process.

A reasonable accommodation could be something as simple as assigning another employee to carry heavy boxes for you. A reasonable accommodation can entail modifying your workspace (e.g. providing an ergonomic computer mouse or a more adjustable chair, etc.) Examples of reasonable accommodation include:

• Providing a leave of absence for medical care
• Providing electrical or mechanical aids in the workplace
• Relocating your work area
• Changing your work schedule
• Changing your job duties
• Reassigning you to a vacant position with duties within your limitations
• Providing you with additional training so you can perform duties within your limitations
• Allowing you to work from home

A leave of absence generally permits a disabled employee (who is unable to work or can only work under a reduced or intermittent schedule due to her disability for a period of time) to an unpaid leave to be off work for a significant amount of time and then return to her former position when the leave ends.

As a disabled employee, you may be entitled to an unpaid leave of absence of up to 12 workweeks under the California Family Rights Act (CFRA), assuming your employer has five or more employees and you have worked at least 1,250 hours for that employer in the 12-month period before the leave begins.

As a disabled employee, you may be entitled to an unpaid leave of absence of up to 12 workweeks under the Family Medical Leave Act (FMLA). While similar to the CFRA in many respects, the FMLA only applies to employers with 50 more employees. NOTE: CFRA leave and FMLA leave generally run concurrently. You cannot take both 12 workweeks of CFRA leave and 12 workweeks of FMLA leave in the same 12-month period.

If you do not qualify under the CFRA or the FMLA, you may be entitled to an unpaid leave of absence as a reasonable accommodation. If applicable to your situation, you may also be entitled to California Pregnancy Disability Leave.

If you believe your employer or former employer has violated your rights because of your disability, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.