"they Can't Do That, Can They?" Employer Policies That Violate Feha
| Publication year | 2019 |
| Author | Hilary Hammell, Esq. |
Hilary Hammell, Esq.
Jean Hyams, Esq.
Oakland, California
California's Fair Employment and Housing Act (FEHA) is chock-full of protections for injured workers. As FEHA practitioners, we hear often from our friends in the comp arena about employer behavior that is not just infuriating but seems per se to violate FEHA. We are authoring this article to highlight the following employer policies every worker's comp attorney should know about because each violates disabled employees' rights under FEHA.
- 100 percent healed policies
- 12-weeks-of-leave-and-you're-fired policies
- Refusing to look for and offer vacant positions
- Refusing to pay for accommodations comp did not authorize
Before we discuss the policies themselves and to provide context as to why these particular policies are illegal, here is a quick primer on what FEHA requires for workers with disabilities.
FEHA, like the Americans with Disabilities Act, is meant to ensure that individuals with disabilities are not discriminated against at work. To achieve this end, FEHA requires employers in California to provide "reasonable accommodations" that allow disabled employees to stay in the workforce. A disabled employee is someone with a physical or mental condition that limits—or makes difficult—a major life activity. Gov. Code, §12926(j), (m). Major life activities include physical, mental, and social activities, as well as working. Gov. Code, §12926(m)(B) (iii). A reasonable accommodation can be many things, including special equipment, modified duties, extended leave, a transfer to a different position, or special exception from the employer's usual rules. Gov. Code, §12926(p). The point of this kind of affirmative entitlement is to provide individuals with disabilities an equal opportunity to participate in the workforce and achieve economic self-sufficiency.
An employee with a qualifying disability can request workplace accommodations for any limitations resulting from that disability. The employee does not have to use any "magic words" to request accommodation. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62, fn. 22. Once the employee's need for accommodation is apparent, the employer must engage in what is called the interactive process with the employee. Gov. Code, §12940(n).
The "interactive process" FEHA requires is an informal process with the employee or the employee's representative to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.
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