Legal Question in Disability Law in California

Re: Can they do this?

If you are chronically disabled, you are entitled to accommodation which could include modified duties or schedule. You should immediately request accommodation due to your disability. You do not want to be accused of abandoning your job. Call the Department of Fair Employment and Housing or me @ 805/641-6600 if you want further assistance.

Re: Can they do this?

This is obviously a violation of the ADA and California Fair Employment and Housing Act (FEHA). However, as Terry Nelson explained, you need to have your workers compensation doctor take you off work. Although employers are "required" to accommodate they don't have to. An employer can chose not to accommodate and the employee's remedy is filing an administrative complaint with the EEOC or the California Department of Employment and Housing. The ADA and FEHA are great laws or suing an employer for not accommodating or violating Workers Compenstion (WC) Laws but it is not gauranteed to provide immeadiate relief. Yes, you can sue under the FEHA when you have a WC claim because you are suing for failure to accommodate and not for the injury. However, you can use the injury to determine damages.

But back to your problem. Have your doctor take you off work. If he will not do it then contact a WC attorney so he can contact the doctor and get him to take you off work. If this cannot be done immeadiately then take time off using the Family Medical Leave Act (FMLA) until the problem is straighted out. In order to take FMLA you only need to inform your employer that you are doing so, there is no need for advanced warning since this is an emergency situation. All that is required is that you call your employer. However I would suggest an email or a fax with a sending report to show the request was made and at what time. You can even do it over the weekend.

However, make sure you go to see your WC doctor on Monday and have him take you off work. If he does not do so, then inform your employer you are taking FMLA time and switch doctors.

Re: Can they do this?

Get yourself a Workers Comp attorney quickly, and get your doctor to take you off work immediately, call him and demand he do so. Your attorney can deal with straightening out your record.

Re: Can they do this?

The law is clearly on your side on this one. In the first place, the attorney that is handling your worker's comp claim should immediately send a strongly worded letter to Human Resources insisting that the write up be removed. Secondly, if any further adverse action is taken by the employer in face of the impending claim they will open themselves up to penalties within the comp claim and possibly a secondary lawsuit for wrongful termination. You may also be entitled to accommodation for your condition to allow you to continue in your job.

Talk to your lawyer!

If you have other questions please feel free to call or write.

Neil C. Newson