High-risk employees include any employees over 65 years of age.

High-risk employees also include employees who have conditions the Center for Disease Control (CDC) has found make them at high-risk for COVID-19. CDC website

This includes employees with any of the following medical conditions: liver disease, chronic kidney disease undergoing dialysis, diabetes, severe obesity (body mass index measuring 40 or more), serious heart conditions, chronic lung disease, or asthma that is moderate or severe.

High-risk employees are also those who are immunocompromised. According to the CDC, many conditions can cause an employee to be immunocompromised, so talk to your doctor about whether you are immunocompromised. The CDC’s current website includes the following as examples of conditions that cause people to be immunocompromised: smoking, cancer treatments, bone marrow and or organ transplants, HIV or AIDS that is not well controlled, and long term use of medications that weaken the immune system.

If you are high-risk, be sure to request a reasonable accommodation from your employer. Your employer is obligated to engage in an interactive process with you to determine whether there is a reasonable accommodation for you. Types of reasonable accommodations, depending upon your job and other factors, may include working from home, eliminating job functions that are not essential, time off, or a flexible work schedule. The EEOC specifically urges employers and employees to look for creative and flexible solutions that permit you to do your job safely.

An employer cannot retaliate against you or terminate your employment because you ask for a reasonable accommodation because you are a high-risk employee. If your employer does, reach out to Siegel LeWitter Malkani for advice and be safe!

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

However, it is important to note that the bill specifically says it will not “be interpreted to revived lapsed claims.” So, if your statute of limitations has already passed, this new extension will not give you any relief. However, if you suffer an adverse employment action (for example, if you are fired) in or after January 2020, the new statute of limitations will apply. The stickier issue is what happens to claims that arose this year, or will arise between now and the end of the year? If you were fired on March 1, 2019, and believe it was due to your gender, you would have until February 2020 to file your charge. But what happens now? Do you have until February 2022 to file your claim? Or, do you still need to file by February 2020?

Normally, when a statute of limitations is increased, it applies prospectively to pending cases. In analyzing the bill, the Senate Judiciary Committee noted: “Applying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in the law, but for which the limitations period had not yet expired on the date of the enactment.” However, because the law does not make this point entirely clear, we strongly advise that you file as soon as possible to preserve any rights that you may have so that there is no argument that you have failed to file within the statute of limitations period. There are other good reasons to file sooner rather than later too- memories fade, key witnesses move out of state, documents go missing – so if you are considering filing a charge, don’t count on that three year statute just yet.

If you believe you have claim for work place discrimination, harassment, and/or retaliation and would like to discuss your options, contact Siegel LeWitter Malkani at (510)452-5000.

Jean Krasilnikoff

In Higgins-Williams v. Sutter Medical Foundation 14 C.D.O.S. 5245 (2015), the Plaintiff worked as a clinical assistant for Sutter Medical Foundation for nearly three years when her doctor diagnosed her as having “adjustment disorder with anxiety” and further reported that her disabling condition was “stress when dealing with her Human Resources and manager.” Plaintiff took a medical leave and as soon as she returned, her manager gave her a negative performance review (the first negative review she received at Sutter). On her second day back at work, Plaintiff’s manager grabbed her arm and yelled at her and Plaintiff suffered a panic attack as a result. Plaintiff’s doctor put her on another medical leave.

Plaintiff then requested, as a reasonable accommodation for her disability, to transfer to a different department so that she could work under a different supervisor and manager. Although Plaintiff and her doctor repeatedly reported to Sutter that she could return to work in a different department under a different manager, Sutter instead chose to extend her medical leave and eventually terminated her employment rather than accommodate her with a transfer.

Plaintiff sued Sutter claiming, among other things, that Sutter discriminated against her on the basis of her disability (adjustment disorder with anxiety) and failed to reasonably accommodate her disability. The Court of Appeals decided that Plaintiff could not pursue her claims because she did not have a “disability” under the California Fair Employment and Housing Act.

In coming to its decision, the Court emphasized that Plaintiff’s only claimed disability was stress and anxiety caused by “standard oversight of plaintiff’s job performance.” This is an important point of emphasis for any employee who claims to need an accommodation due to a mental disability.

If you are a California employee and you have a mental disability that is caused by something other than “standard oversight of performance,” you may still be entitled to an accommodation, which could include a job transfer. Therefore, you may want to consult with an employment attorney to find out whether you are entitled to a reasonable accommodation at your job.

June 3, 2015 Heather Conger

It is a pity for Officer Weaving that he didn’t work in the State of California, where a disability is defined by statute as “limiting” rather than “substantially limiting” a life function. California employees can certainly argue that ADHD is a disability because of this difference. California employees should always file a charge with the Department of Fair Employment and Housing (the DFEH, the California state agency governing employment discrimination and/or have the Equal Employment Opportunity Commission (the federal agency) cross-file the claim with the DFEH.

December 9, 2014 Jody I. LeWitter

Mr. Salas had worked for Sierra Chemical Company in California for a number of years when he injured his back on the job. The company had regular seasonal layoffs during the winter months and typically hired back its workers when business picked up in warmer months. However, after Mr. Salas injured his back on the job and filed a worker’s compensation claim, Sierra refused to hire him back until he could prove that he no longer needed an accommodation for his back injury. Mr. Salas filed a lawsuit against Sierra for unlawful employment discrimination and retaliation under the California Fair Employment and Housing Act, claiming that Sierra refused to accommodate his physical disability and refused to rehire him in retaliation for having filed a worker’s compensation claim.

Almost two years after refusing to rehire Mr. Salas, and just before the case was set to go to trial, Sierra found evidence that Mr. Salas had used someone else’s social security number when he applied for the job many years ago. The company argued that this information provided a complete justification for throwing his lawsuit out of court. Fortunately, the California Supreme Court disagreed, ruling that an employer cannot completely escape from liability just because it later finds evidence, after a lawsuit is filed, that the employee it discriminated against was undocumented. The Court explained that employers would otherwise have a powerful incentive to hire undocumented workers, or “look the other way” when hiring employees they suspect to be undocumented, because they would be able to violate any number of California’s employment laws (including minimum wage laws, child labor laws, and anti-discrimination laws) and get away with it if any of their undocumented employees ever sued to enforce the law.

In reaching its decision, the California Supreme Court examined both federal immigration law and California employment law. The Court determined that since employers are not allowed to intentionally hire undocumented workers under federal law, the State cannot require an employer to pay lost wages to the employee for the time period after it learns of the employee’s undocumented status. (The state also cannot force an employer to reinstate an undocumented employee.) However, in order to help police and enforce California’s employment laws, the State can require employers to pay for other financial damages incurred as a result of its unlawful acts, including back pay for the time period before it finds evidence of an employee’s undocumented status. In other words, if employers violate the California’s employment laws, they can still be forced to pay their employees large financial awards even if they later find evidence that their employees did not have proper work authorization.

August 6, 2014 Heather Conger

As a result of Ignat’s supervisor’s loose lips, Ms. Ignat’s co-workers shun her and ask whether she is going to “go postal”. Ms. Ignat sues for invasion of privacy. The employer defends based on a bunch of technicalities. First, it defended the case based on the fact that she filed her legal papers too late. The trial court bought this, but the Court of Appeals reversed. Then it defended claiming you can only state a claim for invasion of privacy if the invasion is done in writing, rather than orally. The lower Court bought this argument, and dismissed Ms. Ignat’s claim. Luckily for her, the Court of Appeals agrees that an invasion of privacy doesn’t require a written agreement, calling such a requirement “outmoded”.

I wish Ms. Ignat good luck back in the trial court. Yum! Brands (which, by the way, owns the likes of Kentucky Fried Chicken and Taco Bell) should apologize to Ms. Ignat rather than fighting her claim on technical grounds.

Jody I. LeWitter

Ms. Smith worked as a literacy specialist at a school district. She had a back injury that limited her mobility. When her principal informed her that she was being assigned to teach kindergarten for the next academic year, she told the principal that her back injury prevented her from doing so. Thereinafter, Ms. Smith aggravated her back injury, and was off work totally until the end of the academic year. She applied for disability benefits and family leave.

Ms. Smith filed a claim for disability discrimination and failure to accommodate under the Americans With Disabilities Act (ADA). The employer-school district filed for summary judgment.

Ms. Smith explained that by filing for disability benefits and family leave, she meant she was temporarily disabled, not that she could never perform her literacy specialist job. The lower court granted summary judgment, holding that Ms. Smith could not both claim disability and claim she could do the job.

The Ninth Circuit reversed, noting that employees should receive a “wide latitude to overcome apparent conflicts between their disability applications and their ADA claim.”

So, BE CAUTIOUS! If you have or may have a disability or reasonable accommodation claim, and you need to fill out any paperwork (such as a disability application, workers compensation claim, personal injury case insurance forms, or family leave form) be careful what you say! They are watching you! If possible, consult with a lawyer beforehand!

Jody I. LeWitter December 23, 2013

Swissport terminated Ms. Sanchez after the expiration of her four month leave of absence, contending that it had provided her with all that the law required under the PDLL.

But Ms. Sanchez asked what about the other provisions of the Fair Employment & Housing Act? Doesn’t Govt. Code § 12940(m) require that an employer provide a reasonable accommodation to a disabled employee? (Yes.) Wasn’t Ms. Sanchez – due to her high risk pregnancy – a disabled employee? (Yes.) And isn’t it true that a leave of absence is, under the law, a reasonable accommodation? (Yes, again.) And – last but not least – can’t a reasonable accommodation consist of a leave of absence greater than four months? (Yes! See Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 227 ; andWatkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 828-829).

So wasn’t it about time for a published case to declare that – if not an undue hardship on the employer – a disabled pregnant employee should be entitled to more than four months of a pregnancy related disability leave?

This is just what the Court held in Sanchez v. Swissport (2-21-13) ____ Cal.App.4th______ . The Court explained that the pregnancy leave law was meant to supplement, not limit or displace, other provisions of the Fair Employment and Housing Act.

Good for the Court! Good for Ms. Sanchez! And great news for everyone else, including pregnant women, all women employees, and their families!

Jody I. LeWitter March 27, 2013

Ms. White was a police officer with the City of Pasadena. White was diagnosed with multiple sclerosis, but continued to do her job. The City then fired her, claiming she was associating with a known drug dealer and lied about it. Officer White, through her union’s grievance process, arbitrated her termination and she was reinstated to her position as a police officer.

Instead of letting “good enough” alone, Officer White filed a lawsuit in state court (White I), claiming the City of Pasadena harassed and discriminated against her based upon her disability. The jury found for the City, the California Court of Appeals upheld the verdict, and the California Supreme Court refused to review the ruling.

While White I was pending on appeal, the City fired Officer White a second time. Here, there was some evidence that White had attempted suicide, which Ms. White denied. The City investigated and found that she had attempted suicide and that she had lied about it. Ms. White contested her termination through the administrative process, where the City Manager found for the City. Ms. White again took this to the courts, filing a writ of mandamus in state court (White II), which she lost. She appealed to the California Court of Appeals, and again lost.

Finally, Officer White filed a third lawsuit in state court, alleging that the City discriminated against her, harassed her, violated 42 USC §1983, as well as her first and fourteenth Amendment rights (White III).

The defendant removed the case to federal court, as the case contained federal rights. The federal district court held that officer White’s claims were barred because of issue preclusion.

The Ninth Circuit upheld this ruling in a fairly convoluted manner, holding that all of the claims brought in White III had been litigated effectively and were precluded by either White I or White II.

This case is a prime example of why employees and their lawyers should think before they litigate. I did not agree with all the reasoning of the Ninth Circuit here (for example, I don’t agree that the White II administrative record was neutral enough to count for issue preclusion, because a City Manager isn’t a neutral fact finder, and I also don’t agree that White I and White III litigated the same issues – how could they, as White III contested the second firing, which hadn’t occurred by the time of the jury trial in White I? And litigation decisions can be more difficult with public employees who face a variety of administrative procedures. However, there are lessons to be learned here: be extra careful to decide – on a case by case basis – whether and in what forum to contest a termination. If Officer White had simply accepted the first reinstatement rather than suing after she had been put back to work, she wouldn’t have had the White I record to weigh her down.

There is no black letter law for when to use administrative or grievance procedures and when not to use them. A lot may depend upon the facts of the case, the particular procedure available and memorandum of understanding. However, it goes without saying that a strategic analysis of whether or when to do so is always necessary.

Jody I. LeWitter June 18, 2012

Ms. Samper, like Ms. Humphrey, suffered from a disability that made accommodations in the attendance policy a requirement for her to work. Once at work, there was absolutely no evidence that her performance suffered in any way. This type of accommodation seemed just what the doctor ordered. Not so, says the Ninth Circuit, making some very bad law in the process.

According to the Ninth Circuit, regular attendance is an “essential function” of the job of a NICU nurse. Thus, since Ms. Samper’s disability impinges upon her attendance, the hospital need not accommodate her. The Ninth Circuit reached this opinion by relying upon the hospital’s job description and supervisor say so (isn’t that convincing!). The Ninth Circuit made fun of Ms. Samper’s argument that, since all employees are permitted sick days and vacation and the hospital is able to accommodate this, it ought to be able to accommodate further absences due to Ms. Samper’s disability.

Interestingly, there is absolutely no evidence that the care actually provided to the babies in the unit was compromised due to scheduling and/or absences by Ms. Samper or any of the other nurses. Indeed, these are highly trained professionals. The hospital states that understaffing compromises hospital care, but in no way suggested the hospital has actually ever suffered from understaffing.

This case starts by announcing, “This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential”. Perhaps this result was reached because the record was bare on the side of the plaintiff’s evidence. Perhaps this result was reached because there is really, truly something different about neo-natal nursing. Whether this is true or not, the Ninth Circuit has just made a mess of the law of reasonable accommodation, and looked to be a bit glib about the facts. Based on this case, do we now know that attendance is not an essential function for a medical transcriptionist, but it is for a neo-natal nurse? Or do we now know that under the facts submitted to the court in Ms. Samper’s case, attendance was an essential function, but it may not be for a different hospital, a different person, a different department, a different disability/reasonable accommodation, and on a different record? All I know is that Samper v. Providence St. Vincent Medical Center, No. 10-35811, Ninth Circuit Court of Appeals (April 11, 2012), is bad law, neither well-reasoned nor providing specific enough guidance to employers, employees and lower courts.

Jody LeWitter May 7, 2012

Mr. Cuiellette sued, claiming disability discrimination. He claimed that, regardless of the workers compensation disability rating for his officer job, he could do the essential elements of his light duty desk job. The jury agreed, resulting in a $1.5 million judgment, and an appeal. Cuiellette v City of Los Angeles, 194 Cal. App. 4th 757 (April 22, 2011).

The California Court of Appeals upheld the verdict. It declared that a “rating received in the worker’s compensation proceeding was not, as a matter of law, a legitimate nondiscriminatory reason for an employer’s adverse employment action.” Indeed, an employer must engage in the interactive process, and carefully analyze whether an employee can perform the essential functions of his or her job, or other vacant jobs, with or without a reasonable accommodation, regardless of any disability rating. Here, in particular, the Court noted that the City of Los Angeles had a policy and practice of permitting injured employees to perform desk jobs on a long term basis. Thus, it was inappropriate to require that Mr. Cuiellette prove that he could perform the essential elements of his field job, rather than his desk job.

There are quite a number of employers out there that refuse to engage in the interactive process when an employee is found to be mostly disabled by the workers compensation system. The court Cuiellette established that this is wrong. In addition, Cuiellette makes clear that, in at least some instances, a temporary job may be as good as a permanent one. It is important for employees to be aware of their independent rights under the Fair Employment & Housing Act and the Americans with Disabilities Act when they become disabled, and to hold the employer accountable for fully and faithfully engaging in the interactive process.

Jody LeWitter September 19, 2011

Before this case, no California court, nor any court interpreting California’s Fair Employment & Housing Act, had ever ruled on the legality or illegality of taking action against an employee for conduct – considered by the employer to be misconduct – which was caused by a disability. The employer urged the court to adopt its position that, if the employer asserted that the firing was due to the conduct rather than the disability, its action was protected.

The Court of Appeals ruled for the employer, and declared that the employer’s action in firing Ms. Wills for threating conduct did not constitute disability discrimination. The Court did, however, refrain from the wholesale adoption of the employer’s position, refusing to extend its holding beyond the facts of the case. In other words, the Court stated that the termination was justified in the limited circumstances presented, where the conduct included threats of violence or violence.

The Court opined that “consistent with the federal courts’ interpretation of the ADA, we interpret FEHA as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers.” The Court went on to warn, “We express no opinion on whether FEHA permits an employer to distinguish between disability-caused misconduct and the disability itself in any factual setting other than threats or violence against coworkers.”

This holding should not, in any way, result in any further encroachments on the rights of disabled employees other than where violence or threats of violence occur. According to the Court, “We emphasize we are not presented with a situation involving misconduct impacting an employee’s job performance the employer potentially could address through accommodation. For example, an employer could accommodate an employee whose disability caused chronic tardiness or absenteeism by altering the employee’s work schedule.” Let’s just hope the courts draw the line tight here, and that this case is not a slippery slope to courts being tugged at by employers to find further reasons not to reasonably accommodate a disabled employee.

Jody LeWitter May 26, 2011

Mr. Lopez was a protected individual – clean and sober – but with a history of drug addiction. Indeed, under the one strike rule, nothing he could do would ever make him eligible for the job he wanted to hold. Ergo, it seems like FEHA and the ADA should provide him with some protection. However, the Ninth Circuit reached and stretched to find otherwise, relying on the fact that the PMA’s rules and actions were not intended to exclude past drug addicts, but rather to ensure a safe workforce. The Court noted that PMA faces a “culture that accepted the use of drugs and alcohol in the workplace.” The Court further noted that there was no evidence “that defendant targeted or attempted to target recovered drug addicts, as distinct from recreational uses.”

The Court attempted to distinguish a 2004 Ninth Circuit case finding for the employee by noting that, in that case, perhaps the employer was motivated by discrimination against the employee, due to his past addiction, because the employee brought in a note from Alcoholics Anonymous. Hernandez v. Hughes Missile Systems Co. (9th Cir. 2004) 362 F.3d 564. The Court might have well just said it was changing its mind, and that, it was simply deciding that discriminating against someone with a history of drug abuse was acceptable.

In addition, the Ninth Circuit also rejected Mr. Lopez’s disparate impact claim in a completely disingenuous and nit-picky manner. It unfairly characterized Lopez’s expert evidence, statistical analysis and forensic affidavit as “bald assertions.” Again, let’s be real here. This particular Ninth Circuit panel simply decided that those with a history of drug abuse aren’t entitled to the protection of the anti-discrimination laws, so it came up with intellectually dishonest reasons to do so. What really occurred here is that the Court applied a dose of tough love to Mr. Lopez, demonstrating that an employee with a history of drug or alcohol abuse faces an uphill battle in the struggle for workplace inclusion.

Jody LeWitter March 21, 2011