Our California Offices
maze image
Solving legal
problems for
our clients
since 1950

EMPLOYER RELATIONS WITH DISABLED EMPLOYEES

– By Jodie Steinberg

One of the many issues facing employers is the responsibilities that an employer has when one of its employees is disabled, temporarily leaves employment due to their medical condition and then wants to return to work. If an employer employs more than five employees, the employer is bound by the Federal Employment and Housing Act (FEHA) which states an employer can not discriminate against a disabled employee and must make reasonable accommodations for the disabled employee if available. A disability is a condition that limits a major life activity. This article is intended to answer a few of the basic questions employers may have concerning their potential liability for violation of California's anti-disability discrimination law and how to avoid being sued.

How Can An Employer Avoid Being Sued For Disability Discrimination When An Employee Is Disabled?

Employers are often sued for failing to provide reasonable accommodations to a disabled worker. Sometimes when an employee is disabled, he or she will leave their job temporarily due to a medical condition. Depending on the severity of the disability or injury, an employee might be taken off of work by the employee's physician for a period of time. Generally, an employee will be released back to work usually with work restrictions. Often, the employer does not have the resources to provide a disabled employee with employment in accordance with the work restrictions recommended by the employee's physician. Thus, the employer may be forced to eventually terminate the employment relationship with the disabled employee. This may lead to a lawsuit being filed by the employee for disability discrimination in failing to accommodate a disabled worker.

California law regulates an employer's treatment of disabled employees per the California Fair Employment and Housing Act (FEHA). To show that his or her employer has violated FEHA, a disabled employee must prove in a court of law that: (1) he or she suffered from a disability, (2) he or she was otherwise qualified to do his or her job, and (3) he or she was subjected to an adverse employment action because of his or her disability, such as being fired, demoted, transferred, etc.

Under California law, an employer who has an employee that is disabled is required: (1) to meet with the employee and determine the employee's medically-mandated work restrictions; (2) determine if reasonable accommodations can be made which would not result in an undue burden to the employer; (3) if accommodations are available, offer a vacant position to the disabled employee if the employee is qualified and interested in the position; and (4) act in good faith.

However, employers are not obligated to suffer an undue hardship in order to provide a reasonable accommodation. For example, an employer is not required to create a new position within the company, violate a company rule, policy or collective bargaining agreement or incur substantial costs in order to accommodate the disabled employee.

Further issues can arise when an employee has been absent from work for a significant amount of time due to their disability and is terminated due to excessive absenteeism. There is case law which states an employer can not use excessive absenteeism as an excuse to terminate an employee when the absences were allegedly caused by a disability requiring accommodation under FEHA.

Please be advised that if an employee gets injured on the job and then becomes disabled due to the work related injury, different rules under workers' compensation law apply, but FEHA applies as well.

Tips On How To Protect Yourself As A Small Business Owner From Being Sued:

There are many ways employers can protect themselves from liability for violation of FEHA. If an employee is disabled and then is released back to work by a doctor, the employer should:

  • Engage in an informal interview process to determine what kind of work the employee can perform.
  • Determine whether the employee can be reasonably accommodated.
  • If the employee can be accommodated, the employer should offer an alternate position to the employee unless it would cause an undue hardship to the employer or the employee is not qualified or not interested in the position.
  • Always document your efforts in attempting to reasonably accommodate the employee in writing.
  • When in doubt, it is also always a good idea to contact an attorney who will be able to advise you on the applicable laws accordingly.
Oakland Business Review


This article is intended to provide general information only and is not meant to provide legal advice to any specific individual or case. If you are interested in discussing a specific matter, please contact an Ericksen Arbuthnot attorney.

© 2008-2010 Ericksen Arbuthnot — Disclaimer