Legal Question in Disability Law in California
In early 2010 I was diagnosed with an impinged nerve and instructed by the neuro-surgeon handling my case to wear a neck brace as much as possible. I wore the neck brace to work and did daily for 4 months until we were on our summer break.
At no time during the months I wore the neck brace at my place of employment was I ever requested to provide medical documentation nor was I unable to perform my job to its full degree.
Upon return to work in August, I was involved in an incident that resulted in the filing of a Workman�s Comp case. On that day one of district level managers investing the incident entered my office and saw my neck brace. The next day I was instructed to provide medical documentation for the wearing of the brace. To further cloud the issue of the WC case, due to lack of response on management�s part to address the issue that caused the incident, I called Cal-Osha who ultimately cited my employer for various infractions in reference to my WC claim.
Just before my return to work after the summer break of 2011, I was requested to attend an accommodation meeting with my employer and a consultant to address my disability needs. I hadn�t known I was disabled; I was just wearing a brace for most of the day as a conservative means of delaying surgery. I had never asked for any type of accommodation and I had always preformed my job in an excellent manner resulting in a decade�s worth of �Excellent� performance reviews.
My new supervisor had deemed changes in my job which would prove to be challenging with the current restrictions. These were addressed in the accommodation meeting and agreeable means were decided upon in order for me to meet these new tasks.
Since the accommodation meeting, my supervisor is now insisting that I file in filing cabinets that I cannot reach without violating the restrictions placed upon me by my doctor. I am expected to step up on a stool to reach the top drawers, while wearing a neck brace, and file. I have emphatically stated that I would not use a step stool as it would place me in harm�s way to do so. They are now requesting that I provide medical documentation that I cannot stand/step up on a stool or that I cannot remove the brace, step up on the stool, reattach it and file.
My question is two-fold. Does this appear to be retaliation for the WC case and subsequent filing with Cal-Osha and can a supervisor assign work that clearly violates the restrictions given by the doctor? The easiest accommodation to the entire situation is not to have me assume the work of another person, who is able- bodied, but refuses to perform the filing duties. For all the years I have held this position, I have performed every aspect of the job without help or accommodations. Quite honestly, I feel as though I am being set up.
1 Answer from Attorneys
Apparently, your employer has been advised that, because you are wearing a neck brace, you may be suffering from a disability (in California the term is more broadly interpreted that it is under the federal ADA), and that they are required to engage in what is known as an "interactive process". This is where the employer must inquire as to your physical limitations in order to determine whether those limitations may be accommodated to enable you to perform the essential functions of your job, without causing an undue hardship to the employer.
If accommodations have been agreed to, those need to be provided to all supervisors you work for so they do not violate the accommodations. Failure to do so by requiring you perform functions or tasks that you are not physically able to perform or may aggravate your disability or even perceived disability may violate the law under the California Fair Employment and Housing Act.
Open communication is important here. If your manager is not complying with the accommodations agreed to, this should be reported to HR, in writing. You should be keeping a diary, journal or timeline of all pertinent events. If you need direction or assistance, you should consult with an experienced employment law attorney in your area.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
