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Employee Protections Against Wrongful Termination - May 23, 2018 - SF Weekly
SF Weekly

Employee Protections Against Wrongful Termination

This week’s question comes from Kate, who asks:

Q: “I have a friend recently who was terminated by a multibillion-dollar company for not showing up to work. He had been5150’d and was under psychiatric hold as required by his doctor. His then-girlfriend called to let the employer know that he was in the hospital and would call as soon as he was able. He has fired anyway. Doesn’t the ADA require that he be given reasonable accommodation?”

A: Kate, your question touches on two laws: the Americans with Disabilities Act (ADA) and the California Family Rights Act(CFRA).

The ADA has two relevant provisions protecting employees with disabilities. The first prohibits discrimination based on the perception of a disability. Under California law, a disability is any condition, including mental illness, that “limits” one or more major life activities (working, breathing, walking, caring for themselves, etc.). In your friend’s case, the termination might be unlawful if his employer heard about his involuntary psychiatric hold, subsequently perceived him as disabled and proceeded to terminate him on that basis.

The second relevant provision requires an employer to engage in good faith with a disabled, otherwise qualified employee to explore reasonable, not unduly burdensome accommodations in working conditions. Reasonable accommodations depend on the situation and may include time off work for appointments and reassignment of nonessential tasks, among others, so long as the employee is able to perform the essential duties of the job.

This provision only applies if the employer has some notice of the employee’s disability, although knowledge of a specific diagnosis is not required. The employee must also make good faith efforts to cooperate in that process and, if there is a breakdown in communication, the law looks to see who, if anyone, is responsible. Moreover, if a disabled employee is unable to adequately perform their duties or is habitually absent, despite a good faith effort at a reasonable accommodation, the employer may terminate that individual.

I do not have enough information to determine why your friend was 5150’d or whether he has a legally protected disability.I also don’t know if there were work performance issues that predated his absence due to hospitalization. If he was previously problem-free, informed his employer of his treatment and was subsequently terminated, then he might have a case against his employer in wrongful termination. However, if your friend had a history of habitual absences and was again absent without first requesting a relevant accommodation, his termination may have been appropriate.

The second law that could apply, the CFRA, provides that an employer with 50 or more employees within a 75-mile radius must grant up to 12 weeks of medical leave for employees who have been employed for 12 months and worked more than1250 hours in the preceding 12-month period, with limited exceptions. Employees may take this leave for their own serious health condition or that of a family member and must, whenever possible, provide advance notice of their need for leave whenever possible. Employees need not specifically invoke the CFRA, but must indicate that their absence is caused by more than a transient malady like a cold.

If your friend was employed within the City and County of San Francisco, he would additionally be covered by The City’sPaid Sick Leave Ordinance, under which employees earn one hour of paid sick leave for every 30 hours worked, up to a limit of 40 hours for employers with fewer than 10 employees or 72 hours for employers with 10 or more employees. An employee may not be fired for taking sick leave. Assuming, again, that your friend had no prior history of habitual absences or work performance issues underlying his termination, and if he meets the eligibility requirements at a covered company,he may have a case for wrongful termination under the CFRA and the SF Paid Sick Leave Ordinance.

As you can see, more information is needed about your friend’s pre-termination work status, disciplinary history and medical condition before evaluating whether a legal case can be made for wrongful termination. If he had been previously disciplined for failing to report to work and was working under probationary terms prior to termination, then not showing up could provide a good-faith basis for the employer to terminate him. On the other hand, if the employer notified that your friend would be taking medical leave that would qualify under CFRA, termination on that basis would be actionable. Likewise, if the employer knew that your friend was disabled and failed to engage in a good faith interactive process to determine reasonable accommodations or fired him based on a perception of disability, the employer could be held liable. I suggest that your friend contact a good trial lawyer to review the facts particular to his case.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.