Engage—Before You Fire

Consider this scenario:

An employee goes out on a leave of absence for anxiety. His doctor says he’s temporarily totally disabled. Then the leave gets extended because the employee is having problems adjusting to the medication. The employer decides that since the employee has been deemed temporarily totally disabled and filed for disability insurance, he can’t do his job and therefore must be fired.

What is missing from this scenario?

According to a recent California Court of Appeal case—the interactive process was missing as well as an attempt to accommodate the temporary disability.

In Prock v. Tamura Corp. of America, the court held that the employee’s total disability was temporary and that the employer had an obligation to engage in the interactive process to consider a reasonable accommodation under the California Fair Employment and Housing Act (FEHA). The court suggested that, as part of the interactive process, Tamura should have asked Prock when he would be able to return to work and whether he would be able to perform the essential functions of his job at the end of his leave of absence. For more details on the Prock case, click here.

Key Take-Aways from the Prock Case

This decision serves as a good reminder that:

• California employers have an affirmative duty to inquire as to what accommodation, if any, might be suitable—waiting for the employee to ask is a mistake if you are on notice of an illness or injury that might be covered under the Fair Employment and Housing Act (FEHA).
• A further extension of a leave that truly appears to be short term in nature constitutes a reasonable accommodation.
• Managers and human resources professionals should have a good understanding of what the employee actually does so that it can be accurately determined if the purported disability prevents the employee from performing the essential functions of the job.
• Just as there is significant overlap between the disability provisions of the FEHA with workers’ compensation laws, there is also overlap with Social Security Disability Insurance (SSDI) that requires the accommodation analysis.
• Some leaves of absence can and should be counted against the employee’s 12 weeks of protected leave under the California Family Rights Act, so take advantage of it.

In Prock, the appellate court chose not to publish the opinion, which makes clear that there is no new law being made—but merely a reminder of the employer’s obligations under existing law.