Legal Question in Employment Law in California

Is this scenario legal, or is it disability-based discrimination? A company does some federal work, which is more than $10k, so they're a federal contractor. They employ a facilities security subcontractor, let's say Security A, who happens to have an employee who is disabled, and often calls in sick on Mondays and Fridays, unscheduled and thus making the company scramble for flex officers. The company decides to find a new security subcontractor, Security B, who offers jobs to almost everyone from Security A besides the one employee who calls in sick. The employee in question will no longer be working at the company's facilities after 11 years of service, even though they will remain employed with Security A, assuming Security A can find them a reassignment. The company wrote up criteria for how many numbers of absent Fridays or Mondays were allowed, and essentially directed Security B to hire those employees.


Asked on 5/02/12, 4:48 pm

1 Answer from Attorneys
Terry A. Nelson Nelson & Lawless

Being 'disabled' does not protect any employee from discipline or termination for cause, such as performance, attendance, conduct, or attitude problems. They can even be terminated under the general 'at will' rules, as long as the company isn't 'targeting' them because of the disability. The company should follow common sense and their own policies in documenting problems, counseling, warnings, etc. to establish the company 'defenses' against a claim of unfair or false 'cause'. Only if the disability manifests in the actual problems experienced, would the company have an obligation to accommodate the person, and then only if the person can substantially perform all the required functions of the job with the medically required accommodation.

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Answered on 5/02/12, 5:56 pm


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