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| Another Victory for Disabled Workers in California |
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A history of accommodation is no shield for an employer: Court of Appeals On October 16, 2009, the California 1st Court of Appeals in San Francisco strengthened the rights of disabled workers in the workplace. Sometimes employers either through ignorance, carelessness, or indifference do a poor job of accommodating workers with a disability upon their return to the workplace. Or in the recent case mentioned above, the accommodation process was grossly incomplete. As you will see, the employer in this case believed that if they made a grand although incomplete effort to accommodate the employee in this case, that it was good enough. The Court strongly disagreed. Despite even a lengthy pattern of accommodating a disabled employee, a single failure to accommodate the worker violated California’s anti-discrimination law, the 1st state court of appeals ruled in its decision published October 16, 2009. Court records in A.M. (The Employee) vs. Albertsons L.L.C. show a grocery store checker sued Albertsons in 2006 for a failure to accommodate her disability. She later amended her complaint to allege a violation of California’s Fair Employment and Housing Act. In 2008, a jury found the retail grocer failed to accommodate and awarded the plaintiff $200,000. The Employee's Story Five years earlier, the employee underwent chemotherapy and radiation treatment for cancer. The treatment affected her salivary glands, causing her to drink large volumes of water and urinate frequently, court records show. Among other measures, Albertsons accommodated her over several months by allowing her to keep water at her work station despite a prohibition against it, and managers covered for her when she needed a bathroom break. The arrangement worked for more than a year. Then in February 2005, a new supervisor who had never worked with A.M. was on duty one night and turned down three of her requests for a break, saying the supervisor was busy. After the supervisor hung up the in-store phone, A.M. urinated and menstruated while standing at the check stand. She cleaned herself in the bathroom and then went out to her car. Customers standing at her check-out line followed her outside the store to her car to try and comfort her. She drove home in tears, contemplating suicide, the court said. As a result of her embarrassment, she became withdrawn and suffered from depression, among other problems. Emotionally fragile from her childhood in war-torn El Salvador, her cancer and past experiences as a crime victim, she left her job soon afterward and was committed to a psychiatric hospital for several days, the court said. She returned to work in August 2005. A Marin County Superior Court jury found in June 2008 that Albertson's had failed to provide a reasonable accommodation for A.M.'s disability and awarded her $12,000 for lost wages, $40,000 for medical expenses and $148,000 for emotional distress. Albertson's appealed the verdict, arguing that it had accommodated A.M. for more than a year and that she should have told the supervisor about her medical condition or simply gone to the bathroom without permission. Albertson's argued that its 2005 failure to accommodate was trivial because it constituted a single incident in the context of a much greater period of successful accommodation beginning in 2004. But the appeals court called that interpretation inconsistent with FEHA because the statute “does not speak of a pattern of failure.” The First District Court of Appeal in San Francisco said the jury had been entitled to find that Albertson's was at fault for not informing the supervisor about A.M.'s condition and need for bathroom breaks. Although an employer may have accommodated a disabled worker's needs over an extended period, "a single failure to make reasonable accommodation can have tragic consequences," Justice Timothy Reardon said in the 3-0 ruling. The appeals court affirmed the lower (Superior) court’s decision. http://www.courtinfo.ca.gov/opinions/documents/A122307.PDF What does this mean for injured and/or disabled classified employees in our school districts? • Employers (Districts) in California are now held to an even higher standard when it comes to accommodating employees who are disabled. • What doctors write in their accommodation directions (return to work notes) is critical and must not be cursory, vague or simplistic. Accuracy is very important. • Employees should have representation when they engage in the "interactive meeting" between the employee and the employer in discussing specific accommodations. This meeting will generate a specific accommodation document that may determine whether or not an employee will be successful upon their return to work. Most importantly... If you are a chapter officer, steward, co-worker and are aware of another co-worker who has been injured on the job or at home, or has become disabled from an illness, notify your labor relations representative immediately for guidance. Whether the situation is a worker's comp, or an Americans with Disability Act (ADA), Fair Employment and Housing (FEHA) case, your CSEA staff, including our legal department, will effectively assist you with these sensitive and sometimes intricate legal situations. |