Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

Full Day Workshop on January 16: Start the new year on the right “employment law” foot! Click on HR4U 101 Workshop for more details. Now approved for 8 hours of HRCI credit.

 

January 18, “Affordable Care Act Overview" sponsored by the Institute of Management Accountants

 

January 31, “How to Build a Hiring System for Consistent Performance” sponsored by Capstone Pacific Investment Strategies

 

February 11, “Leave Me Alone! An Overview of Leave Laws in California” workshop sponsored by Industry Manufacturers Council

 

Totally but Temporarily Disabled Worker Denied Additional Leave Could Pursue Disability Discrimination Claim, California Court Rules

An employee who was discharged after seeking an extension of his leave of absence was a qualified individual entitled to proceed with his disability discrimination claim under the California Fair Employment and Housing Act, even though he was totally disabled while on leave, where leave may be a reasonable accommodation of his temporary disability, the California Court of Appeal has ruled. The Court found the employee’s receipt of disability benefits did not bar his claims where he also asserted he could have returned to work if given additional leave. It also found the employer failed to engage in the interactive process when the employee requested an extension of his leave.

 

Justin Prock worked for Tamura Corporation of America. In July 2008, Prock began suffering from an anxiety disorder. His physician prescribed medication and ordered Prock to take a leave of absence from work from August 20 to September 5, 2008. Prock’s physician later called for extending the leave for an additional two weeks. The company granted Prock’s leave request and he was scheduled to return to work on September 22.

 

On September 22, Prock’s manager e-mailed Prock that she had expected him back to work that day and inquired whether his doctor had sought to extend his medical leave and requested the doctor fax her a note if that were the case. Thereafter, Prock phoned his manager and told her that his physician recommended an extension of his leave through October 31st. The manager responded that the company could not hold his position open until then and that he was terminated. 

 

Under the FEHA, an employer may not discharge an employee because of the employee’s mental or medical condition unless the employee is unable to perform the essential functions of his or her job “even with reasonable accommodations.” In addition, an employer must make “reasonable accommodation for the known physical or mental disability” of the employee, unless the employer can demonstrate that doing so would “produce undue hardship to its operation.” Further, an employer must engage in a “timely, good faith, interactive process” to determine “effective, reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” A “reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment . . . provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.”

 

Under California law, the Court explained, an employee who is temporarily disabled and needs a leave of absence to recover from the disabling condition may be a qualified individual. It also explained that judicial estoppel under California law does not automatically apply to bar an employee’s disability discrimination claim where the employee asserts that he or she is disabled for purposes of receiving disability benefits.

 

Note: The obligation to engage in the interactive process is ongoing and is triggered any time an employee makes a request for a reasonable accommodation, even if the employer previously made accommodations for the same disability.

 

Jury Awards $3M to Workers Injured in Boiler Explosion

Five workers injured by a factory blast won $3 million against their employer for intentionally sending them into danger. The workers of Tec-Cast, a metal casting plant in New Jersey, were working near a pressurized boiler-type tank in January 2008 when it exploded for unknown reasons.

 

One worker, Mario Gomez, was standing directly in front of the tank and was killed instantly. Gomez had worked at the location for seven years and had been planning to retire the following year. The explosion fractured the skull of another worker, Jose Salazar, who also broke his leg in the accident. Another worker, Ramon Agramonte, suffered a broken ankle and a fourth worker was psychologically injured, requiring therapy.

 

In order to collect damages from their employer, the workers had to prove Tec-Cast’s conduct was intentional. Their attorney argued that the company violated several safety rules, didn’t make sure their safety devices were working, hired unlicensed and unqualified technicians to do repairs, and didn’t do proper inspections on the tank.

 

A jury of six agreed that the company was aware of the substandard conditions when it assigned the workers to work near the tank, finding it engaged in an “intentional and knowingly deceptive course of conduct.”

 

The jurors awarded $1.4 million to Gomez’ widow and five children, and $1.2 million to Salazar. They also awarded $78,000 to Agramonte, but nothing to the worker who suffered only psychological injuries.

 

Factoids

Depression in the Workplace:

• Part-time workers are 54% more likely suffer from depression than full time employees
• 10.8 5 of full time and 16.6% of part time employees will be diagnosed with depression at some point
• Part timers without depression miss an average of 7 days per year
• Part timers with depression miss an average of 13.7 days per year
• Full timers without depression miss an average of 4.6 days per year
• Full timers with depression miss an average of 8.7 days per year
• Collectively, depressed workers miss an additional 68 million workdays per year and this results in $23 billion in lost productivity

 

Quotes

“Friends that don't help you climb will want you to crawl.”

~Colin Powell~