I have been on disability with a request to transfer to a different facility and after I spoke with human resources I was told to go ahead and apply for another position in the company. when I did I received an e-mail back stating that my request was denied. And that Company policy states I have to return to work in order to transfer. I am under elevated stress as a result of this back and forth. I under no circumstances can go back to same place. Can I seek representation now? Thank you
The Fair Employment and Housing Act basically defines two categories of disability: mental disability and physical disability. Each category contains its own specific definitions. Additionally, under the FEHA, an employee with a “medical condition” is also entitled to accommodation.
Physical Disability—Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult.
Mental Disability—Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity, or having any other mental or psychological disorder or condition that requires special education or related services. An employee who has a record or history of a mental or psychological disorder or condition which is known to the employer, or who is regarded or treated by the employer as having a mental disorder or condition, is also protected.
When an employee becomes unable to perform the essential duties of their job as a result of a covered disability, the employer must make reasonable accommodation(s) that will allow the employee to perform the essential assigned duties of her/his position. The employer must explore reasonable accommodation options when an employee requests accommodation, or there is evidence that an employee may need accommodation due to a covered disability. To that end, the employer must participate in the interactive process to reach a reasonable accommodation. The interactive process is the way in which the employee and his or her employer arrives at a reasonable accommodation.
It is generally the responsibility of the employee to inform the employer that an accommodation is needed in order to perform the essential job functions, or to receive equal benefits and privileges of employment. The employee does not have to formally notify the supervisor or department in writing, but it is always a good idea to make such a request in writing .
The employer should consult with the employee to ascertain his or her specific physical or mental abilities and limitations as they relate to the essential job functions, and to discuss the employee’s preferences with regard to accommodations. The employer will usually request that the employee provide written documentation from a licensed medical practitioner, specifying the employee’s functional limitations as they pertain to the job, without providing diagnostic information. This documentation may also include the medical practitioner’s suggestions about potential accommodations. An employer is not obligated to provide accommodations that are not reasonable or present an undue hardship.
If the employer is unwilling to grant reasonable accommodations, there is potentially a claim for damages suffered by the employee.
You might benefit from consulting with an experienced employment law attorney and having them evaluate your case. The California Employment Lawyers Association maintains a list of employment law attorneys who represent employees against employers. Follow the link to: www.cela.org.
If your doctor is willing and able to do so, he or she should give you a return to work note that indicates a restriction as you cannot be asked to work in the same environment or with or under the same persons that caused the anxiety. Giving that doctor's note to your employer will trigger the employer's obligation to engage in a timely good faith interactive process with you about how to bring you back while addressing your medical restrictions. Then, assuming there is an open position for which you are qualified and which would not be a promotion within a reasonable distance from your home, and assuming placing you in that position would not cause the employer an undue hardship, the employer would be required to make that move. If the employer fails to provide you with an available reasonable accommodation, then you would have a likely right to make a claim against your employer.
If that happens you will need to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
In California, an employer who has an employee with a disability is required to engage in a good faith interactive process in order to determine what, if any, reasonable accommodation the employee requires in order to perform the essential functions of the employee’s job. In this case, it does not seem that your employer engaged you in the interactive process but rather outright denied your transfer request. It would be prudent for you to seek an experienced employment law attorney in order to establish the best course of action for you in this situation.
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