At-Will? The Reality Is There Is Often A Reason
I have discussions with many people about the at-will nature of employment these days, about how either party can terminate the employment relationship on a whim. But let’s be honest. Terminating the employment relationship, by either the employee or the employer, for no reason, rarely happens. There is usually a reason. The employee quit for a better opportunity, or the employer replaced the employee for a better opportunity. Sometimes it has nothing to do with work and has to do with some sort of conflict. A lot of times it has to do with money.
Many medical conditions and disabilities are protected categories. Unlike other protected categories, such as race, people don’t hate someone because they have a medical condition such as cancer. What employers and supervisors have animosity towards is missed work.
A Reasonable Accommodation Can Be Time Off
Doctors and medical providers have the same business hours as most employees which means employees must miss work for treatment or check ups. This time off can be a reasonable accommodation. But here is the issue.
Reasonable Accommodations Are Prospective In Nature
The duty of an employer to provide a reasonable accommodation to an employee with a disability under the American with Disabilities Act (“ADA”) and California’s Fair Employment & Housing Act (“FEHA”) is prospective in nature. What does this mean?
Let’s say an employee with a medical condition needs to change their medication pursuant to their doctor’s orders. But, the change in medication causes temporary adverse effects on the employee, such as moodiness or lack of focus. Then the lack of focus causes an error in work performance resulting in a write-up, or worse, termination.
When informing the employee of the discipline, the employee states, “but it is because my doctor changed my medications and I have the doctor’s notes.” Because the duty to provide a reasonable accommodation is prospective, and in the situation where the employer was never notified, the employer is not required to reverse their decision to discipline the employee.
What Is Right vs. What Is Legal – Do You Know Your HR?
I agree the right thing to do would be to forgive the employee. However, I was reading an article recently for HR professionals where many were posting their approval of not having to reverse their employment decisions. It was shocking to me that so many were more interested in disciplining the employee rather than doing what was right.
Putting Your Employer On Notice Of Your Disability And Need For Accommodation Helps Protect Your Rights
If you have a disability or medical condition, consider putting your employer on notice of it and inform them of your potential needs. Your disability and/or medical condition may not affect your job generally, but on occasions where you need time off to visit your doctor, rest after a treatment, or adjust to medications, putting your employer on notice prior to your need can protect your job.
Are there those employers and supervisors that will discriminate against you because of their fear you are going to miss work? Unfortunately, yes. However, in vindicating your rights, you must prove that your employer knew or should have known of your disability and need for accommodation. That is so much easier to do with an email from you to your employer stating such as opposed to your testimony that you told your manager, or that your manager should have known by way of vague references during discussions.
You Still Have To Prove Your Claims
Following this course will not mean that you will win in a lawsuit. You must prove your claims that you were harassed or discriminated against unlawfully. The point here is to never give your employer an excuse to justify terminating your employment and escape liability for their or their supervisor’s unlawful harassment/discrimination.
Use Common Sense & Contact An Employment Lawyer
This is not intended to be legal advice, but rather this is a general common-sense approach to a difficult situation employees experience. If you feel you are being treated unfairly in the workplace, contact me, or another competent employment law attorney for legal advice for your specific situation.
This article is made available by THE TIBOR LAW FIRM, A.P.C. for educational purposes only as well as to provide general information and a general understanding of legal issues, and not to provide specific legal advice. By reading this and/or commenting, you understand that there is no attorney client relationship between you and THE TIBOR LAW FIRM, A.P.C. The information contained herein should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.