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diabled employee no longer able to perform job California

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  • diabled employee no longer able to perform job California

    One of our call center employees recently suffered a stroke and cannot control the left side of his body. He indicated he wants to return to work, but his speech is badly impaired and he cannot use his left hand to type.

    The call center requires that he be able to communicate clearly and complete a typed log for each call. The job frequently requires the employee to remote into a customer's PC to perform work, again using the live voice and typing.

    What are the company's obligations to this employee? All jobs within the company require the same speech and keyboarding skills, so there is no other position to offer.

    I appreciate any input, references, or suggestions.

  • #2
    Is it your assessment that he cannot perform his job? Or his doctor's assessment? I would give him a copy of his job description and ask him to have his doctor assess his ability to perform the job based on the job description. If the doctor determines that he cannot perform the essential functions of the job, ask for a time frame as to when, if ever, he will be able to perform the essential functions. If the doctor says, for example, he will likely be able to RTW in X months, you should consider granting him a leave of absence as an accommodation. Is CFRA applicable here at all?


    • #3
      I am not sure if CFRA applies here or not; we are a small company with no formal HR department.

      I appreciate the feedback about getting his doctor to evaluate his fitness for the job; there is a difference between being able to work and being able to perform this job.


      • #4
        When you say small, how small exactly?


        • #5
          28 employees, including the owner.

          Also, CFRA may apply but we have to verify the total number of hours worked to be sure.


          • #6
            You are covered under the Fair Employment and Housing Act (5+ employees) but to be covered under CFRA, you would need 50+ employees for 20 or more weeks during 2008 or 2009.


            • #7
              Just to clarify, the CFRA would apply if there are 50 or more employees within a 75 mile radius of the worksite where employee works (+ the other requirements that have to be met).
              Last edited by Betty3; 11-12-2009, 05:49 PM.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

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              • #8
                Disabled employee

                The main concern is not CFRA at all, but FEHA. The main issue is whether you have a duty to engage in interactive process and provide reasonable accommodations to the employee (Cal. Gov. Code section 12900 forward).

                If there is no accommodations that can be provided that would allow an employee to perform his essential functions of the job, then he can be lawfully dismissed. Going with one or even better - two medical assessment regarding what can be done to accommodate the employee's disability before taking any separation action and also considering paying a severance in exchange for release of all claims might be the best option in your case.

                Arkady Itkin
                Attorney at Law
                San Francisco / Sacramento / San Jose


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