MY RECENT BLOG POSTS MISTAKENLY FAILED TO INDICATE THAT THE CONTENT HERE WAS DERIVED FROM AN ARTICLE ORIGINALLY WRITTEN BY NEIL PEDERSEN, ESQ. OF PEDERSEN MCQUEEN. THE ARTICLE IS ENTITLED “FEHA RED FLAGS: COMMON EMPLOYER VIOLATIONS OF CALIFORNIA’S DISABILITY DISCRIMINATION LAWS,” TO WHICH THE STATE BAR OF CALIFORNIA WEBSITE POSSESSES A COPYRIGHT. FUTURE ARTICLES IN THIS SPECIFIC BLOG SERIES SHALL ATTRIBUTE THE CONTENT TO NEIL PEDERSEN.
Part of my practice is to make sure that employers, namely small business owners, properly comply with state and federal laws which protect disability discrimination against employees. Most employers who believe they have acted in good faith towards injured employees don’t actually realize that they sometimes fail to follow the guidelines established by The Fair Employment and Housing Act (FEHA). FEHA names disabled persons a protected class and requires employers to treat them in defined ways.
Each and every employer has the obligation to protect its employees from disability discrimination and retaliatory termination. That is why every employer must make the effort to understand its obligations under FEHA. That is why I will be dedicating the next ten (10) blog posts to common employer FEHA violations. Let’s start off with the so-called “TTD Misapplication.”
If an employee is injured on the job, he’s legally entitled to workers’ compensation benefits by the employer. In the workers’ compensation system, the injured employee is labeled as being either TTD (temporary total disability) or TPD (temporary partial disability). Most employers believe that if an employee is classified as being TTD, then the employee can’t work at all, that he’s totally disabled, and cannot be a productive part of the employer’s work force. This usually becomes a very expensive mistake for the employer.
Under the recent California case Cuiellette v. City of Los Angeles, the court ruled that even an employee who is classified as 100% permanently and totally disabled can and should be accommodated if doing so would not constitute an undue hardship to the employer. This means that an employer’s obligations under FEHA exist independent of the employee’s classification in the workers’ compensation system. The employer must accommodate the employee’s disability by either modifying the employee’s job description, work space, or by providing assistive measures at work. Employers mistakenly believe that a classification of TTD or TPD simply means that they can’t employ the worker until further notice indicating otherwise. Now we know this is not true.
Whether an employee is classified as TTD or TPD in the workers’ compensation system has no bearing on what an employer’s obligations are towards the employee under FEHA. Under FEHA, the employer must engage in continuous, good faith communication with the employee and make accomodations in the work place for the disabled employee so long as such accommodation does not constitute an undue hardship on the employer. And what does “undue hardship” mean? It basically means that so long as the accommodation doesn’t put the employer out of business, it is reasonable and should be done.