Column : Rights of disabled probationary employees in California

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Q:        I had to undergo surgery mid-way through my probation period as a new hire. When I told my manager that I needed to be off-work for several weeks to recover, and that my return date will not be until after the probation period had expired, my manager said not to bother returning, that I did not make it through the probation period, and that I was fired. What are my rights?

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A:        Even if you were still on a probation period, the employer still has a duty to engage in an interactive process to determine if you can be provided reasonable accommodation. An employee suffering from a disability or medical condition is entitled to reasonable accommodation. Granting additional temporary leave of absence may constitute reasonable accommodation if, after the leave, the employee likely can resume his or her duties.

The employer must engage in a timely, good faith interactive process to determine if reasonable accommodation can be made for a disabled employee. If the disabled employee was terminated, even if able to do the job with reasonable accommodation, the employer’s conduct may be wrongful. The employee, who sues for wrongful termination and prevails, may be entitled to back pay, loss of future earnings, damages for emotional distress, punitive damages, and attorneys’ fees and costs in certain instances. This is true whether employees are classified as permanent or probationary. Consider the following case as reported by the Daily Journal:

Fifty-seven year-old Marisa Hernandez worked for Rancho Santiago Community College District and began a probationary period of one year. A few months into her employment she was injured at work. She had work restrictions but continued to work for several weeks. More than halfway through her probation period, she had to undergo complex surgeries on her finger and had to be on leave for about three months in order to get well. Towards the end of the third month, Hernandez informed her employer that she needed more time to recover, and would not be able to return to work until the next month. The employer immediately fired her.

Hernandez sued the employer for wrongful termination and failure to accommodate. Hernandez claimed that the employer violated California law by failing to accommodate her physical disability by terminating her approved medical leave of absence and firing her. Hernandez further claimed that the employer failed to engage in an interactive process by refusing to meet and discuss any other accommodation.

The employer argued that it could not extend Hernandez’ probation period. As a probationary employee, Hernandez had to complete her one year probation. She had already worked 8 months prior to going on leave. The employer argued that if it did not fire her she would automatically have become a permanent employee at the end of 12 months, even though she only worked eight months.

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