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My employer asks me to stay home as they notice changes in me after a brain stroke. I do not get paid. They recently ask for a doctor note to let me go back to work. What are my rights to get back to work or get paid?

Attorney Answers 3

Posted

It depends on what sort of changes they've noticed, and on what type of work you do.

If your employer feels that you are a danger to yourself or others, it is entitled to require a doctor's release for you to return to work. The employer is not entitled to your diagnosis, but it is entitled to have a doctor's assurance that you are not a danger to yourself or to others in the workplace.

Nor is the employer entitled to make generalized assumptions about your safety in the workplace. For example, it can't merely assume that because you're moving slower, or your speech is slurred, that somehow it's not safe for you to be there.

On the other hand, if the employer's concerns are not safety-related, it has no right to send you home and require a doctor's return-to-work, if you've returned to work already. (This is a different situation than a return-to-work exam, which they are entitled to *prior* to your return to work) If they are noticing problems with your work performance, they must engage in a timely, good faith interactive process with you to determine if you need a reasonable accommodation to perform the primary functions of your job. They can even ask if you need restrictions.

At the end of the day, though, it might be in your best interests just to go to the doctor and get a note either returning you to work, or stating the conditions under which you can return to work. It may be a pain in the neck, but it's also probably the quickest way to get you back there. If they still refuse to allow you to return, you may consider taking legal action at that time.

I hope this information is helpful to you.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com
310-706-4177

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Craig, under the FEHA and the ADA, the employer is entitled to a diagnosis before providing reasonable accommodation. Why do you say it is not required for a "threat to self or others" assessment?

Craig Trent Byrnes

Craig Trent Byrnes

Posted

Mika, I don't think the employer is entitled to a diagnosis before providing a reasonable accommodation. I think the employer is entitled to know what reasonable accommodations the employee needs so it can determine whether those can be provided. See 29 CFR 1630.13. I did jump the gun on the "threat to self or others" assessment -- it can be required when there's a business necessity purpose to it. What I was trying to get at was that there has to be a reasonable basis for believing the "threat to self or others" -- the employer can't make generalized assumptions that stroke victims are unsafe at work, and require a "threat to self or others" assessment on that basis. There has to be a reasonable basis for the belief.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

The EEOC suggests providing a diagnosis is part of the reasonable accommodation process. I cannot easily find the source of this right now but it is consistent with the EEOC discussion here: http://www.eeoc.gov/eeoc/publications/ada_mental_health_provider.cfm. Certainly the employer is allowed to request documentation of the employee's impairments and limitations. I completely agree the employer is prohibited from making a decision on a "threat to self or others" assessment based on general or stereotypical information. The law is clear the analysis must be individualized and based on currently-existing manifestations, not what might conceivably occur in the future or what has occurred in other people with the same condition.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

Mika, we'll just have to agree to disagree on this. This may be an instance in which federal and state law diverge. See 2 Ca. Code Regs 7294.0(c)(3) ("(3) When the employer or other covered entity has received reasonable medical documentation, it shall not ask the applicant or employee about the underlying medical cause of the disability, but may require medical information, as set forth in section 7294.2 below, and second opinions from other health care providers."

Posted

You need to provide a return to work note to your employer from your doctor. If there are restrictions that the employer must deal with, the employer is required to engage in a timely good faith interactive process with you to discuss how you can do your job in light of the restrictions. The employer would then be required to provide you with a reasonable accommodation to allow you to perform the essential functions of your job, if any exist, as long as those accommodations do not constitute an undue hardship on the employer.

Get the doctor's note, because the employer has no duty to act until you do.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Craig Trent Byrnes

Craig Trent Byrnes

Posted

Neil, why do you believe that the employer has no duty to act without a doctor's note? My concern was that the poster may have been sent home illegally. "Noticing changes" in a stroke victim could just mean that he's slurring his speech, for example, and the employer got frightened and over-reacted. Doesn't it depend on why the employer sent him home, and whether the basis for doing so was reasonable? I agree as a practical matter that the employee should consider just getting a doctor's note, but why do you believe the employer otherwise has no duty to act?

Posted

Employers are limited in what medical information they can request from an employee. To get a better understanding of the employer's rights and your rights, please look at my Avvo guide on medical inquiries and examinations, and medical confidentiality under the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=medical-information-and-the-ada--inquiries-and-confidentiality. An employer's rights to medical information is even more limited under California's Fair Employment and Housing Act (FEHA). Please look at my Avvo guide to the differences between the ADA and the FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.

The FEHA applies to employers with 5 or more employees. The ADA applies to employers with 15 or more employees. Both laws require that the employee have a physical or mental impairment that limits one or more major life activities; for the ADA to apply, the limitation must be "substantial."

Both laws prohibit an employer from firing or discriminating against an employee in any way because of disability, and both laws require an employer to provide reasonable accommodation to an employee with a disability if doing so will help the employee perform the essential functions (main parts) of his or her job.

Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable you to do the main functions of the job, allowing extra time off work for things related to the disability, and more. Also, the employer may not treat you differently from other employees because of your disability. For example, the employer may not refuse to promote you, deny you training or otherwise limit your job opportunities, and the employer may not fire you because of your disability. Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment, and my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.

This is a complicated area of law and you may benefit from legal assistance, even though it may cost you a few thousand dollars. Yes, I know you are not getting paid at present and it may be hard to come up with the money to pay for an attorney. Still, a good attorney can end up gaining you far, far more than you pay in fees.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope you can resolve your situation and wish you the best.

@MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.

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