Issue 2 - 2009

An employer may be liable for disability discrimination because it fired a long-term employee who could no longer pass the company's mandatory respirator certification test due to his high blood pressure. A federal appeals court recently decided that once an employee shows that a job qualification standard excludes a person because that person has a disability, the employer may be liable for disability discrimination unless it can prove that the challenged job standard is both job-related and consistent with business necessity.

The Court found that the respirator test was not a business necessity, even though the employer had used it for years, because the employee never actually wore a respirator to perform his job duties. Additionally, even if the respirator test were a business necessity, the Court explained that the employer should have considered whether there were any available reasonable accommodations that would have enabled the employee to pass the test, such as letting the employee take the test at a different time of day.

This case reminds employers that they cannot apply the same qualifications standards to every employee and job applicant. Instead, employers must tailor their requirements to fit the actual needs of each particular job position. Additionally, if a disabled employee or applicant cannot meet a job qualification standard, employers must consider whether reasonable accommodations are available and enter into an interactive process with the employee or applicant.

The new Family and Medical Leave Act (FMLA) regulations deviate in material ways from comparable state regulations interpreting the California Family Rights Act (CFRA). The California Fair Employment and Housing Commission recently announced that it plans to revise its CFRA regulations at an unspecified future date. In the meantime, employers must juggle conflicting statutory schemes when administering employee leave issues. The Commission has created a Table comparing differences between the revised FMLA regulations and the CFRA regulations, which is posted on the Commission's website, http://www.fehc.ca.gov/pdf/FMLA-CFRARegsTable-2.pdf. As a general rule, when federal and state regulations regarding employee protections conflict, employers will be required to apply the regulation that gives employees the greatest protection.

Please contact the attorneys at Simpson, Garrity, Innes & Jacuzzi, PC if you have questions about leave rights and obligations and/or need to update your policies to reflect the recent regulatory changes.

What are your rights if an employee is out on leave under the FMLA and during the leave you discover for the first time that the employee has significant performance issues or has been involved in misconduct that violates the company's policies. Consider, for example, the situation where a supervisor working in the Customer Service Department of a retail employer is out on protected FMLA leave and during the leave the employer discovers that the supervisor had not been performing his expected job duties and even attempted to hide or bury this fact. In this situation, can the employer discharge the employee when he or she returns to work following the protected leave?

According to a recent federal Seventh Circuit decision (not covering California), the answer to the question is a qualified yes, so long as the employer has done a thorough documented investigation to confirm the nature and extent of the performance issues and/or employee misconduct that form the basis for the decision to discharge. Cracco v. Vitran Express Inc., (March 17, 2009). The employee may still claim wrongful termination and/or interference with his reinstatement rights under the FMLA, but the employer may have sufficient evidence to establish that the termination was for reasons unrelated to the employee's protected leave.

In this case, the employee for a trucking company was a Service Center Manager who was hospitalized with a serious health condition that rendered him temporarily unable to work. He requested approval to take medical leave under the FMLA, which the Company approved. While the employee was out on protected leave, the Company hired several replacement employees to cover the supervisor's job responsibilities. As these replacement employees undertook the supervisor's duties, they discovered several problems which were reported to the employer. The problems were significant and wide-ranging (e.g., the freight terminal was disorganized, employees were not following procedures, freight was sitting on the dock, damaged freight was hidden in trailers, safety concerns were noted, customers were complaining, and overtime was not being handled properly). In addition, it appeared that the supervisor had been attempting to hide some of these problems by making false entries in records.

The employer conducted a thorough investigation of these issues, including reviewing freight delivery receipts and comparing them to corresponding computer entries made by the supervisor. The findings from this review led management to conclude that the supervisor's computer entries were not simply errors, but a deliberate attempt to disguise late deliveries and damaged goods. As part of its investigation, the employer also interviewed the supervisor's prior manager who confirmed that, one year earlier, the supervisor had refused to admit that he was responsible for problems at the terminal.

When the supervisor returned to work from medical leave approximately one month later, the Company terminated his employment. The supervisor then brought a civil action against the Company alleging that the Company had interfered with his FMLA rights by failing to restore him to his prior position and retaliating against him for taking protected leave by terminating his employment. The trial court dismissed the case, finding that the supervisor had failed to establish retaliation, and that the supervisor could not prevail on his interference claim because there was undisputed evidence that the Company had terminated his employment for performance issues unrelated to taking FMLA leave. The Seventh Circuit upheld the trial court decision.

While the Seventh Circuit generally is considered to be a pro-employer jurisdiction outside of California, a California Court of Appeals decision, Neisendorf v. Levi Strauss & Co. (2006), applied a similar analysis where the employee alleged that her termination violated California's Family Rights Act (CFRA), holding that the employee's discharge upon return from leave was based on legitimate, non-discriminatory reasons that had nothing to do with the employee's leave.