Tuesday, July 21, 2015

Employees Requesting Accommodation Are Now Protected

Fisher & Phillips LLP 

On July 16, 2015, Governor Brown signed into law AB 987, amending the California Fair Employment and Housing Act (FEHA) to reflect what many already believed to be the law: employers and other covered entities cannot retaliate against employees or other persons who request a religious accommodation or an accommodation for a disability. Effective on January 1, 2016, AB 987 establishes that requesting such an accommodation is a protected activity under the FEHA, regardless of whether the accommodation is granted.

New Law Overturns Court Case

Didn’t FEHA already prohibit retaliation against those requesting an accommodation? The answer depends on whom you ask. For years, employee advocates believed the answer was “yes” and filed lawsuits claiming this type of retaliation was barred under the statute. It was not uncommon for a religious or disability accommodation lawsuit to also allege retaliation for having exercised the right to seek an accommodation. On the other hand, a California court of appeal took a different view in the 2013 case of Rope v. Auto-Chlor System of Washington, Inc.

When Scott Rope was hired in 2010, he notified his employer that he would eventually need leave from work so that he could have surgery to donate one of his kidneys to his disabled sister. Later, at his doctor’s recommendation, he requested additional leave time for post-surgery recovery and requested he be paid during his leave under the Michelle Maykin Memorial Donation Protection Act (“DPA”), a law which was to become effective on January 1, 2011. Under the DPA, employees are entitled to 30 days of paid leave when missing work for organ donation. Although Rope repeatedly reminded his employer about his request for paid leave, his employer did not respond and instead informed him that he could take an unspecified amount of unpaid leave. Two days before DPA became effective, Rope’s employer terminated him for poor performance. Rope then filed a FEHA lawsuit. Continue reading

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