A complex set of federal and state laws and regulations control the leave that must be granted to employees when they or a loved one becomes ill. Most people are familiar with the Family Medical Leave Act (FMLA) and the California Family Relief Act (CFRA), each of which provides specific leave periods for particular events. The statutes are not identical, however, and employers often confuse rights under one or the other statutes. More problematic is the frequency with which adverse action is taken against those who exercise their rights under these statutory protections. (A good reference for the rights provided under each of these statutes is at www.dfeh.ca.gov/publications_StatLaws.htm). We are intimately familiar with the intricacies of these statutes and are very familiar with assisting those who have been discriminated against or retaliated against because they took leave under these statutes.
In addition to the two statutes referenced above, Government Code ß 12940 (prohibiting discrimination) also prohibits discrimination on the basis of disability. That means that an individual who has suffered an injury, illness, or is otherwise disabled must be accommodated if such accommodation can be provided without ìundue hardship being caused to the employer. All too often, employees suffer on-the-job injuries and are unable to return to work for an extended period of time. In such case, the employee is entitled to the protections of FEHA and/or CFRA for a twelve-week period of time. After that, the Government Code continues to require that the employer make a reasonable accommodation for the ill or injured employee. That reasonable accommodation includes, according to relevant California case law, affording the employee time to recover from the injury or illness. Unlike the CFRA or FEHA, the obligation to make reasonable accommodations for a disabled employee continues indefinitely; that is, there is no fixed time period after which the employer has the right to terminate the employee.
Once the employer is aware of an employeeís injury or disability, it is required to engage in an ìinteractive process with the employee. The purpose of that ìinteractive process is to discuss ways in which the employer might accommodate the disability of the employee. Failure to engage in this ìinteractive process is itself an independent violation of the Government Code and is a separate and distinct cause of action from the discrimination or retaliation by the employer.