Granting workers on-again-off-again leave is reasonable accommodation

Q:        I have a heart condition that has become worse recently. I need to see my doctor periodically or when I feel dizzy or short of breath. This means I need to request a half day off every now and then to see my doctor. I am afraid to tell my boss because I may get fired. What do I do?

A:        Inform your employer that you need reasonable accommodation in order to take intermittent leave for medical reasons. FEHA prohibits discrimination based on disability or medical condition. Therefore, an employer may not terminate an employee based on the employee’s disability or medical condition.

An employee who has a disability should notify the employer of his or her condition in order to obtain accommodation. Reasonable accommodation includes assistance that the employer extends to the employee, in order to enable the latter to do his or her job despite the disability. Even if the medical condition does not limit any major life activities (i.e., there is no disability), the employee is still entitled to reasonable accommodation.  This means allowing the employee to be absent from work for medical treatments or doctor appointments.

The employee is still required to comply with the employer’s attendance policies. Thus, the employer may require the employee to provide a doctor’s note covering time away from work for illness or injury. However, the employer cannot use the employee’s medically sanctioned absences against him or her by demoting or firing the employee.

Consider the following case out of San Diego:

Angela Hernandez worked as a sales and service rep in one of AT&T California Inc.’s call centers in San Diego. Hernandez suffered from migraines and vertigo, which made her miss time from work and for which she took intermittent leave. Out of a maximum of 480 hours of leave per year allowed, Hernandez took anywhere from 366 hours to 480 hours of intermittent leave from 2006 to 2011. AT&T granted every one of Hernandez’s requests for leave.

In September 2011, Hernandez took an extended leave of absence because of a vertigo flare­up, and she eventually exhausted her leave. Because of this, the employer placed her on a non­job­protected leave. When Hernandez returned from her leave in January 2012, she was written up for performance and attendance related issues. She was finally fired for failure to follow “service rep standards.”

Hernandez sued the employer, alleging that she was the victim of a widespread practice by AT&T management of targeting employees who were on FMLA. Hernandez alleged that the employer illegally disciplined employees who had medical issues, or who took FMLA leave. During trial, Hernandez showed the jury an email from a manager, instructing her team to identify the “problem children,” – those who used up their FMLA in a year, and to essentially terminate these employees.

Hernandez claimed that the discipline she received, the bad performance reviews she was given, and her termination were really because of the amount of FMLA time she took.

The employer denied Hernandez’s claim saying that she was fired for business reasons such as her bad performance and refusal to follow procedures. The employer also accused Hernandez of abusing the leave process.

After trial, the jury issued a verdict in favor of the employee on all claims, awarding her $527,884 in future economic damages, $500,000 in past emotional distress, and $1 million in future emotional distress, for a total jury verdict award of $2,027,884.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyerby the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]