Legal Question in Employment Law in California
Wrongful Termination
I have not been able to walk for the past year due to a knee surgery not being successful. I am in constant pain and recently reinjured my knee, and now my other so I cannot walk without a brace and crutches. I am on pain killers and can't concentrate well enough on them to work anyway, and I have a heart condition that the pills sometimes strike up, leaving me sick. My dr. does not know if this problem can ever be fixed, however, he scheduled me for surgery and has taken me off work and I am now on temp. disability. I asked my employer if I could possibly telecommute, because another employee is set up that way, and they immediately said no and said that they had to terminate my employment because they can't do without me for 8 weeks. However, they are a large company and I know they have the resources to hire a temp or let me work from home. Am I protected at all under ADA?
3 Answers from Attorneys
Re: Wrongful Termination
If you can perform the essential functions of your job from home, you may have a right to an accommodation of your disabilty under California law. The ADA is a federal law which affords less protection. You should either file a claim with the Dept. of Fair Employment and Housing or consult a lawyer in your area.
Re: Wrongful Termination
Yes you are protected, under both the ADA and California's statute. If you can do all the essential functions of your job with an accommodation -- in this case, by telecommuting, then your employer is required to allow you to do so. There are circumstances under which an employer can terminate you, but I would need additional information to comment on that.
You should do two things. Contact a local lawyer who may be able to help you just by negotiating directly with your employer.
Second, you MUST contact the local office of the California State Department of Fair Employment and Housing. You will find it located in the blue pages of the phone book under state listings. Call them, make an appointment and say you want to file a charge of disability discrimination.
Finally, you do not state it in your question, but if your knee injury is job-related you will need to file a workers compensation claim.
Re: Wrongful Termination
An employer may terminate an employee who has a pending worker's compensation claim if the position needed to be filled because of business realities. However, an employer may not terminate an employee in retailiation for the employee filing a worker's compensation claim or treat him in a disparate manner because of the filing. If you feel that you were discriminated against because you made a worker's compensation claim, then yo may instigate a Labor Code 132 (a) action and increase your benefits by 50%.
You would be well served by obtaining representation. This is a matter for which an experienced hand in legal strategy in needed. Don't try to go through this by yourself, get the results that you deserve. Please call me directly at (619)222-3504
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