I am under a Dr's care for depression and was recently diagnosed with a bleeding ulcer, after a month of constant and severe stomach pain. I am on medication for these conditions but my antidepressant meds have been adjusted and switched. We haven't found the right dosage yet and I continue to have symptoms that have impacted my ability to learn a new job over the past 9 months. These symptoms include poor memory, weeping, inability to focus, poor concentration, anxiety, etc. I made it through the 90 day probationary period but have recently received a bad performance review. In California, do these circumstances make it any more difficult or complicated for my employer to fire me?
In California, these circumstances probably make no difference whatsoever in your employer's ability or right to fire you.
Employment is presumed to be "at will". Unless you have an employment contract or are part of a union subject to a collective bargaining agreement, the employer can fire you for pretty much any reason, so long as the reason is not unlawful. Therefore, if you are performing poorly, the employer can terminate you at any time.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
I disagree with attorney Chen, which is surprising because I usually agree with him completely.
If your depression meets the definition of "disability" under the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) or the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA), then your employer may have to provide reasonable accommodation to make it possible for you to perform the essential functions (main duties) of the job. For example, the employer may have to allow you more time to learn, provide information in a different form, or make other adjustments. The employer must know you have a disability, which means you will have to disclose. Your employer has no way of knowing your performance problems are due to disability unless you reveal that information. Also, you must ask for reasonable accommodation.
Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.
Please look at 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.
Also, take a look at my Avvo guide to reasonable accommodation for obsessive-compulsive disorder, which may give you some ideas on the types of reasonable accommodation that you might request: http://www.avvo.com/pages/show?category_id=6&permalink=reasonable-accommodation-for-people-with-obsessive-compulsive-disorder.
You may be interested in the free services provided by the Job Accommodation Network (JAN): http://askjan.org/. JAN is the best source for free, expert, and confidential guidance on workplace accommodations. JAN offers one-on-one guidance on workplace accommodations, the Americans with Disabilities Act (ADA) and related legislation. JAN provides help over the phone and on-line. JAN is a service of the United States Department of Labor (DOL) Office of Disability Employment Policy.
Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. 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, and you can search for attorneys by location and practice area. In your particular situation, I suggest you look for an attorney who specifically mentions disability law and who has been practicing employment law for a while. Cases involving mental health disabilities can be difficult, so you want someone who knows what she or he is doing. Certainly, there may be newer attorneys who are perfectly competent; the ultimate decision is yours, of course.
I hope you can resolve your situation and wish you the best.
*** 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. ***
I agree with everything Attorney Spencer has written in response. I would also add the following.
The most important part of what Attorney Spencer mentioned is that your employer must be on notice that your performance issues are the result of your disability. An employer is not entitled to put its head in the sand and say "I know nothing" if the disability is obvious and the impact it is having on your ability to perform your job is obvious. However, if either the disability or the connection to your work difficulties is not obvious, then it is incumbent upon the employee to tell the employer about the fact that she has a disability that is impacting her ability to carry out the essential functions of her job.
In the situation described by the question, it does not appear that the employer knows that a disability may be playing a role in the performance issues. Once the employer does know about the disability and the connection, the employer is required to engage the employee in an interactive process (ie, collaborative discussion) to determine if there are any reasonable accommodations (either permanent or temporary) that might enable the employee to carry out the essential functions of her job.
These situations are always complicated and individualized, because the employee's disability is always unique and the job duties (and determination of what are actually essential functions of a particular job) are always unique.
Right now is a crucial time if you are seeking to preserve your employment and obtain reasonable accommodation(s). I suggest contacting an attorney in your area for a consultation as soon as possible so that you may more fully understand your rights, the employer's obligations, and how to approach the situation.
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