"Waiting is painful. Forgetting is painful," the Brazilian novelist Paulo Coelho said. "But not knowing which to do is the worse kind of suffering."
These sentiments appropriately illustrate the conundrum employers face when an employee is placed on medical leave as a result of a job-related medical condition. Is the employer required to hold the employee's job open indefinitely until he or she returns? Is the employer required to rehire the employee once he or she no longer has a disability? What are the rights of the employer and the employee in this situation?
In Williams v. Genentech Inc., 2006 DJDAR 5589 (Cal. App. 1st Dist. May 9, 2006), the 1st District Court of Appeal answered some of these critical questions. This case involved an employee on an indefinite medical leave for a job-related condition (stress) who was terminated shortly after returning to work. The court ruled that while an employer must reasonably accommodate an employee with a disability, an employer is not required to hold a position open indefinitely while waiting for a medical disability to end and may terminate the employee if a position is not available upon the employee's return.
Rochelle Williams worked as a receptionist for 10 years for Genentech. On Oct. 16, 2000, Williams was reprimanded for poor job performance, causing her to suffer "job-related stress," depression and anxiety. Two days later, she was placed on medical leave for an initial 10-day period. While on leave, she told Genentech's senior human resources manager that she felt "harassed" and unfairly treated by her manager.
Instead of lasting only days, Williams' anxiety and depression continued for months, causing her medical leave to be extended several times.
Genentech's medical leave policy provided six months' paid leave. Consistent with the California Family Rights Act, Government Code Section 12945.2, it also guaranteed the employee the same or an equivalent position upon his or her return to work if the leave did not exceed 12 weeks in a 12-month period. The policy expressly provided that if an employee's medical leave extended beyond 12 weeks, Genentech could not guarantee that a position would be available to the employee. The policy also provided that after the 12week period, if the employee's position had been filled during his or her medical leave, the employee would be provided 60 days following his or her return to work to locate a position within the company, and the employee would be fully compensated for the first 30 days of that 60day period.
During Williams' medical leave, Genentech had "floater receptionists" fill in from other departments, resulting in inadequate reception coverage, shortened lunch breaks for receptionists, and a decline in morale - all of which adversely impacted Genentech's business operations. After Williams exhausted her 12 weeks of leave, but before she returned to work, Genentech hired a new receptionist to fill her position.
When Williams finally returned to work six months after being placed on medical leave, there were no vacant receptionist positions at Genentech. She looked for a different position within the company, including a position as a labware technician, but was unable to locate a position for which she was qualified because she had no scientific experience and limited work experience. Because she was not hired for any position during her 60-day job search, her employment was terminated.
Williams sued Genentech under California's Fair Employment and Housing Act, Government Code Section 12940, claiming that Genentech (1) discriminated against her based on her race and disability, (2) failed to reasonably accommodate her disability, and (3) failed to engage in an interactive process by filling her position while she was on "stress leave" and refusing to hire her to a vacant position upon her return to work. The Court of Appeal rejected Williams' claims and affirmed the trial court's decision to grant summary judgment in favor of Genentech.
California's Fair Employment and Housing Act prohibits an employer from discharging an employee, or from discriminating against an employee in the terms, conditions, or privileges of employment, because of a physical or mental disability. Government Code Section 12940(a). Under this act, "physical disability," "mental disability" and "medical condition" are broadly construed "so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling." Government Code Section 12926.1(b).
This act makes it an unlawful employment practice to fail to make reasonable accommodation for an employee's known physical or mental disability unless it would create an undue hardship to the employer's operation. Government Code Section 12940(m); Californian Code of Regulations Title 2, Section 7293.9.
"Reasonable accommodation" includes, "job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions." California Code of Regulations, Title 2, Section 7293.9(a).
Finally, the act mandates that employers engage in "a timely, good faith, interactive process with the employee" to determine effective reasonable accommodations when requested by an employee with a known physical or mental disability or condition. Government Code Section 12940(n).
To establish discrimination, a plaintiff must prove that "he or she (1) suffered from a disability, or was regarded as suffering from a disability, (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to adverse employment action because of the disability or perceived disability." Williams. The plaintiff must show that "intentional discrimination was the 'determinative factor' in the adverse employment action."
Williams argued that Genentech discriminated against her based on her disability in violation of California's Fair Employment and Housing Act by filling her position while she was on medical leave for job-related stress. She also argued that Genentech failed to reasonably accommodate her disability by not holding her position open until she was released to return to work.
The court rejected these arguments. The court found that keeping Williams' position open during the 12week policy period constituted a reasonable accommodation of her disability, stating, in pertinent part: "Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future."
The court ruled that an employer is not required to hold an employee's position open indefinitely, stating: "'Reasonable accommodation' does not require the employer to wait indefinitely for an employee's medical condition to be corrected." As such, once the 12week "position guaranteed" period lapsed, the court found that Genentech had the right to hire a new receptionist for Williams' position to remedy the hardship caused by her indefinite absence.
In addition, the court found that Williams could not claim disability discrimination because she was a "qualified individual with a disability" who could have returned to her position with a reasonable accommodation. When Genentech filled her position, she was completely unable to work. Her medical leave had been extended several times beyond the 12-week "position guarantee" period. Between April 12 and May 15, 2001, her physician found that her anxiety and depression rendered her "totality incapacitated."
By failing to establish that she was able to work, the court held that Williams "could not establish a necessary element in bringing a disability discrimination claim."
Williams claimed that Genentech's termination of her employment constituted disability discrimination because Genentech should have hired her as a labware technician when she returned to work. Although not spelled out clearly in the court's decision, Williams seemed to argue that Genentech should have trained her for that position.
The court disagreed, finding that her termination was not a pretext for discrimination but rather was based on "legitimate, nondiscriminatory reasons" because she lacked the requisite qualifications for that position. She had no scientific education and limited work experience. Williams testified that her interviewers for the labware technician position were unaware of her disability and never made any comment or took any action to suggest that they would discriminate against a person with a disability or one who had been on disability leave.
The court ruled that an employer may refuse to hire an employee with a physical or mental disability who is unable to perform his or her essential job functions with reasonable accommodations.
The court also rejected Williams' claim on the grounds that Genentech had no obligation to create a position for Williams. When Williams returned from her medical leave, there was no vacant receptionist position and no other positions for which she was qualified. Because Genentech acted within the scope of its medical leave policy, the court concluded "Genentech's decision to terminate her pursuant to its personnel policies was legitimate and nondiscriminatory."
Beneath the surface of the Williams case rests an important take-home message that every lawyer should convey to his or her employer-client: Document! Document! Document!
The importance of a having clear, well-written medical leave policy cannot be emphasized enough in preparing for, and handling, employees' medical leave. In reaching its conclusions in this case, the Williams court routinely looked to Genentech's medical leave policy to determine the employee's rights and the employer's remedies. Genentech's strict adherence to its personnel policies undoubtedly played the decisive role in the court's dismissal of Williams' discrimination claims.
Additionally, this case displays the significance of maintaining a paper trail to properly document the employer's decisions and the information available to the employer in making those decisions.
For instance, before filling Williams' position, Genentech notified her in writing that her medical leave had been extended, that she had exhausted her 12week "position guarantee," that it would need to hire a replacement, and that she could look for another position within the company for 60 days following her return. When Williams' leave was extended, it was documented in "Genentech's records."
When Genentech considered filling Williams' position, the human resources manager sent a memorandum to "the management team" with suggestions regarding her expected return to work.
By taking these precautionary measures, employers will help take the uncertainty out of waiting for a disabled employee's indefinite return from medical leave.
Robert S. McWhorter is a senior associate at Nossaman, Guthner, Knox & Elliott in Sacramento.