In the recent California Federal District Court action of Thomsen v. Georgia-Pacific Corrugated, LLC the Court held that an employer might violate their obligations under California’s Fair Employment and Housing Act (“FEHA”) simply by requesting that an employee return to his doctor to obtain a note to outline additional work restrictions before the employee can return to work.
In Thomsen an employee went on worker’s compensation after injuring his shoulder and underwent surgery. He returned to work eight months later with a 30 lbs lifting work restriction. Through an interactive process with the employer, the employee was assigned to a different job that was believed to satisfy the work restriction. However, after performing at the new job the employee complained to the employer that the long hours and manual operation of an overhead lever required by the job were exacerbating his condition. The employer’s Human Resources Department told the employee to return to his doctor to obtain a note so the employer could determine whether additional restrictions were needed beyond the 30 lbs lifting restriction. The employee never returned to his doctor to obtain the note and the employer never followed up with the employee about it.
The employee ultimately refused to work an overtime shift and the employer terminated the employee when he failed to do so. The employee thereafter sued his former employer for disability discrimination and other related claims.
The Court rejected the employer’s argument that, because the employee failed to obtain an additional doctor’s note, his claims for failure to accommodate and failure to engage in interactive process should be dismissed. The Court determined that it was unclear whether the employee’s new position had met all of the employee’s work restrictions since the position still required occasional lifting beyond 30 lbs. The Court found the Company should have had a conversation with the employee in response to his concerns about the overhead lever and overtime hours, before it decided the employee had to return to his doctor.
In addition, while Plaintiff was fired for allegedly “abandoning his shift,” he presented evidence that employment termination was more severe for these infractions than the consequences provided for such conduct set forth in the Company’s written attendance policy.
Consequently, the Court permitted Plaintiff’s claims to go to trial.
The Thomsen decision distinctly shows that employers must follow up to solve many employment issues. A common sense request for additional medical information about an employee’s restrictions was found not to satisfy an employer’s duty to engage in the interactive process because the employer did not follow up on its request. The decision acknowledges that employers’ discharge their duty to engage in the interactive process is highly fact-intensive.
The Thomsen decision clearly indicates that Courts expect that employers must take the lead role in the interactive process and cannot place additional burdens on employees to prove the need for reasonable disability accommodations for employees who return to work with work-related disability restrictions. Thus, before you decide to terminate an employee with a known disability it is imperative that the employer work with competent legal counsel to determine whether the employer’s proposed accommodations are reasonable under the circumstances.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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