• Employees absent for 31 days or less are entitled to continuation of their employer paid health insurance. After 31 days, they are entitled to COBRA-type benefits.
• Pension plan eligibility must continue as if there were no break in service.
• Employees are entitled to certain reemployment rights depending upon the length of their military service.
• Employees on military leave for 30 or more days cannot be discharged “without cause” for six months to one year after their return, depending upon length of military service.

If you have any questions or need your policies reviewed on this subject, please seek legal counsel.

Some employers reading summaries of this decision may believe that their employees with similar injuries may not be protected by disability law. However, the California law, which was amended effective January 1, 2001, creates a completely different standard. Initially, the California law does not require an employee to be substantially limited in a major life activity, only to be limited. In addition, under California law, an employee need not show that he is prevented from working in a broad class of jobs; if the employee is prevented from working in only one job, he may be protected. Ms. Thornton’s claim, if analyzed under the FEHA, may well have had a different result.

The moral of the story: be sure to analyze disability claims and responsibilities under both federal and California law.

For example, in Kohls v. Beverly Enterprises Wisconsin, Inc. (7th Cir. August 1, 2001), the employer discovered during an employee’s FMLA leave that she had mismanaged her position -- including mishandling certain company funds. The mismanagement involved errors in trust fund checking accounts for which the employee was responsible. The employer terminated the employee when she returned from leave. The Family and Medical Leave Act (“FMLA”) provides rights to eligible employees, including the right to be reinstated to the position held when the leave began, or to an equivalent position. However, this right does not entitle an employee to anything greater than what she would have received had she not taken the leave. The federal court upheld the termination -- pointing to the trust fund discrepancies and the employee’s performance problems. The court stated that the employee would have been fired for these problems even if she had not taken FMLA leave. The fact that her mismanagement was not discovered until after she took the leave, did not alter the employer’s right to terminate her employment, even after the leave had begun.

You may be missing a step. Under the federal Health Insurance Portability and Accountability Act (“HIPAA”), patients have new privacy rights regarding when and how healthcare providers share employees’ medical information. In fact, an individual must grant advance consent for most health information disclosures. Employers should obtain written authorizations from employees for most disclosures of health-related information. In addition, California has its own law regulating the use of medical information, the Confidentiality of Medical Information Act. This California law, although not as well-publicized as the newer HIPAA, also prevents the use and disclosure of medical information in many cases, unless an authorized release has been obtained. Under the California law, an employee authorization to disclose medical information shall only be valid if it:

• is handwritten by a person who signs it or is a in a typeface no smaller than 8 point type.
• is clearly separate from any other language present on the same page and is executed by a signature which serves no purpose other than to execute the authorization.
• is signed by the patient or the legal representative of the patient if the patient is a minor or incompetent.
• states the limitations, if any, on the types of medical information to be disclosed.
• states the names or functions of the employer or person authorized to disclose the medical information.
• states the names or functions of the persons or entities authorized to receive the medical information.
• states the limitations, if any, on the use of the medical information by the persons or entities authorized to receive the medical information.
• states a specific date after which the employer is no longer authorized to disclose the medical information.
• advises the person who signed the authorization of the right to receive a copy of the authorization.

Michelle Birschtein worked on an assembly line at an automotive assembly plant. A co-employee forklift driver asked her for a date on several occasions and Birschtein refused. The employee then made a crude remark to Birschtein and told her about a sexual fantasy that involved her. Birschtein complained to management and the employee never spoke to Birschtein again.

That is when the staring started. Over the course of six months, the employee drove his forklift by Birschtein’s workstation and stared directly at her for at least several seconds each time. According to Birschtein, the employee then began to park his forklift in the area “and just sit there, five to ten minutes at a time, just staring at me.”

Birschtein complained again and the staring incidents decreased but did not stop. There was nothing overtly sexual about the staring, although the employee did grab his crotch on one occasion as he drove by Birschtein.

The Court of Appeals found that the employee’s conduct constituted actionable harassment. The creation of a “hostile work environment need not have anything to do with sexual advances .... [I]t is only necessary to show that gender is a substantial factor in the discrimination and that if the plaintiff had been a man, she would not have been treated in the same manner.” The Court determined that the staring, coupled with the requests for dates, the crude remark, and the sexual fantasy statement was sufficient to allow the case, filed under the Fair Employment and Housing Act, to proceed to trial. Birschtein v. New United Motor Manufacturing, Inc., California Court of Appeals, First Appellate District (October 9, 2001).