This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.

#9 – Forcing Employees To Be Out On Leave Instead Of Offering A Different Reasonable Accommodation

An employer may not force an employee to go out or remain on leave if the employee can work with a reasonable accommodation. (Cal.Code Regs., tit. 2, § 11068, subd. (c).) Yet, employers frequently force employees to remain on unpaid leaves of absence because they incorrectly assume that the employees cannot perform their essential job functions or because they are not willing to offer reasonable accommodations that would allow the employees to work.

In Wallace v. County of Stanislaus, a deputy sheriff was placed on an unpaid medical leave of absence because of his employer’s incorrect assessment that he could not safely perform his duties even with reasonable accommodation. ((2016) 245 Cal.App.4th 109, 134, reh’g denied (Mar. 24, 2016), review denied (May 11, 2016).) The court of appeal held that the employer must face the consequences of its error:

[T]he Legislature intended to “provide protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.” (§ 12926.1, subd. (d), italics added.) In light of this clear expression of legislative intent, County cannot rely on its mistaken beliefs about Wallace’s physical condition and safety to claim its reasons were legitimate under California law. . . .
In summary, we conclude there is no dispute that County’s motive for placing Wallace on a leave of absence was its mistaken perception that his physical condition created a safety issue. It logically follows that County’s perception of Wallace’s physical condition was a substantial motiving reason for County’s decision to place Wallace on a leave of absence. Consequently, there is no need for a trier of fact to consider the substantial-motivating-reason element on remand–it is established as a matter of law.

Thus, employers must think twice before forcing an employee to remain on leave rather than offering them another reasonable accommodation.

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To read about the next way that employers deny employees their leave rights, click here: #10 – Failing To Return Employees To Vacant Positions For Which They Are Qualified#10 – Failing To Return Employees To Vacant Positions For Which They Are Qualified.

This series was adapted from Ramit Mizrahi’s article in The Advocate Magazine, “Ten Ways That Employers Deny Employees Their Medical Leave Rights (June 2017).

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