[COLUMN] Employer’s duty to find suitable job for the disabled employee

Q: I WORKED at a company for more than 20 years. I was injured at work several months ago and I was forced to take a leave of absence so I can have surgery and recover. When my leave ended, I called my employer so I could return to work. My supervisor told me my position was eliminated while I was on leave and I have to wait until another position opens up. After three months of not hearing anything, I called the employer again. This time HR told me I had been terminated because they could not find a position for me. Is this right?

A: No, it is not. Based on the facts you narrated, this termination may be unlawful. First of all, the employer, having known of the employee’s disability, should have engaged in interactive process with the employee. This means communicating with the employee in good faith to determine if reasonable accommodation is available so the employee can continue to do their job. Engaging in the interactive process allows the disabled employee and the employer to work together to determine reasonable accommodation.

California law prohibits discrimination based on disability or medical condition. California law defines disability (whether mental or physical) as any disease, disorder, cosmetic disfigurement, anatomical loss, emotional or mental illness, or specific learning disabilities, which limits a major life activity. Working at a job is considered a major life activity.

The employer has a duty to provide reasonable accommodation to employees to enable them to work despite their disability.  Depending on the employee’s specific restrictions and the employer’s circumstances, some examples of reasonable accommodation include making facilities accessible to and usable by disabled individuals; job restructuring; or offering part-time or modified work schedules. If the employee can no longer perform their former job’s duties, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job.

The employer has the duty to find and offer suitable jobs for the employee. The employer must in good faith determine whether a disabled employee can be transferred to a vacant position. The employer is in a better position to know what jobs are vacant or may become vacant. Lastly, the law entitles the disabled employee to “preferential consideration” in reassignment of existing employees.

If the disabled employee was terminated, even though they could have performed the job with reasonable accommodation, the employer’s conduct may be wrongful. Consider the story of Rosa Jensen:

Jensen, 55 years old, worked at a Home Depot in Hemet, California for several years in various positions. Jensen was injured at work and had to take medical leave to undergo carpal tunnel surgery. After she had the surgery, Home Depot refused to return her to work and kept her on a leave of absence. Jensen had a shoulder surgery months later, and Home Depot still refused to return her to work after that second round of leave. Home Depot then claimed they eliminated her position and there was no job for her. Home Depot then terminated her.

Jensen sued and contended that Home Depot wrongfully terminated her because of her disability, failed to engage in the interactive process, and failed to provide reasonable accommodation despite the improvement of her condition and numerous requests to return to various positions.  Jensen accused the company of keeping her on unpaid leave for 14 months, hoping she would quit. When she didn’t quit, the company claimed it eliminated her position and terminated her. Jensen argued she was fired because of her injuries.

After 15 days of trial, as the Daily Journal reported, a jury found that the employer engaged in disability discrimination, failed to engage in interactive process and failed to accommodate Jensen’s disability. They returned a verdict in favor of the employee, awarding her $3,967,135 in economic and emotional distress damages.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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