Month: March 2021

medical discrimination of an employee

Medical Discrimination

Martin

Medical Condition Discrimination

Medical condition discrimination denies the employee what should have been rightfully theirs if it weren’t for their medical conditions. In the workplace, as far as the law is concerned, employers are not allowed to engage in any form of discrimination against any individual due to their medical condition. In practice, employers are to instead offer due accommodation to their employees who live with a medical condition.

The only ground exempting them from this obligation is when providing such accommodation facility results in extreme hardship. Depending on their medical situation, certain employees who feel discriminated against can bring an action against their victimizing employers for damages. In this piece, we’ll highlight and elaborate on certain details that survivors of discrimination practices need to keep in mind before considering filing a suit for discrimination.

 

Employers are not to refuse to hire anyone with a medical condition

Employers are expected to assess job prospects with little to no regard for their supposed or real medical conditions. Discrimination based on medical condition is outlawed in any form of hiring which includes:

  • Refusal to offer decent accommodation
  • Refusal to participate in a timeous, well-intentioned interactive session with employees who need a reasonable accommodation
  • Demotion
  • Pay reduction
  • Promotion denial
  • Refusal to hire
  • Denial of benefits
  • Harassment
  • And any other discrimination in any manner due to the employee’s med conditions.

Interestingly, it’s great you know that the enactments against medical condition discrimination are not restricted to employers. Similarly, they apply to labor organizations and unions. These organizations are forbidden from attempting the exclusion, expulsion, and restriction of memberships to a certain individual because of their national origin. Moreover, this type of discrimination is relevant to employment agencies and apprenticeship training schedules.

 

The legal forms of medical conditions that both California and US federal legislations protect against

The relevant law for general discrimination and employment issues in California is the California Fair Employment and Housing Act (FEHA). Under California law, a “medical condition” is regarded as any of the following:

  • Any health deficiency linked to a finding of cancer or a history or record of cancer
  • Genetic characteristics

Medical conditions also intersect with physical or mental disabilities. A “mental disability” accounts for any psychological or mental condition that restricts the main life activity. These restrictions are assessed with little to no concerns about assistive tools, mediation, or decent accommodations. Examples of mental disabilities may account for chronic ailments such as schizophrenia, anxiety disorder, dementia, clinical depression, bipolar disorder, and others. Physical disabilities involve temporary or permanent conditions such as impaired eyesight, impaired hearing, chronic diseases, hepatitis, diabetes, etc.

 

The Issue of Medical exams to qualify for a job

Where other probable employees aren’t expected to attempt medical exams, employers can’t request a job prospect to attempt such exams either. Also, if the exams have little or nothing to do with the business expediencies, there’s no point, according to law, demanding such exams. Inexact application questions and improper interviews may be a symptom of likely violations of medical condition discrimination.

Most times, interviewers designated by employers request answers to issues of general health, med condition, physical or mental disability. This should not be so. However, it is one thing for the employer to want to know more about if applicants can carry out the core tasks of the work and how they’d carry out such work. And, this may be permitted. But, if an employer goes to the extreme of asking general or specific medical questions which can be adjudged as making the response a determinant to getting the job, there’s certainly fire on the rooftop.

The only reasons your employer may ask you questions relating to your medical state are these:

  • The employer feels the employee can’t carry out a job effectively due to a medical condition
  • The employer needs some medical report to effectively assist the employee with decent accommodation.

 

What Reasonable Accommodation means

Do you wonder what “reasonable accommodation” would be? A reasonable or decent accommodation goes farther than barely arranging some structural facility for the employee or prospect living with a medical condition. Indeed, reasonable accommodation refers to any arrangement that will let the applicant or employee carry out the core job functions. This would account for

  • Reshuffling the job;
  • Adjusting work schedules;
  • Part-time scheduling;
  • Reassigning to an unfilled position;
  • Modifying to training materials
  • Adjusting equipment
  • Adjusting work policies

Unless it would result in extreme hardship, the employer is responsible for providing reasonable accommodation to the employee. In defining “undue hardship”, the cost and nature of the facility would be considered. Moreover, the general fiscal resources relevant to making the facility available will be looked at as well. Again, the form of operations of the personnel of the organization will also be considered.

 

Filing a complaint on medical condition discrimination

Discriminating against an employee due to their medical condition violates the law in California and the US. On the federal scene, there is the Equal Employment Opportunity Commission (EEOC) which imposes federal Anti-discrimination laws. At the state level, the California Department of Fair Employment and Housing (DFEH) deals with applications against medical condition discrimination.

Before you file a discrimination lawsuit, it’s advisable you talk the issue over with a supervisor or HR to try and resolve it. If your efforts yield no result, then you may lodge a complaint with the DFEH or the EEOC.

In certain cases, the law in California provides comprehensive protections against discrimination issues than the federal legislation. If you want to file your complaint personally in California, it’s required you exhaust all prior administrative facilities before doing so. However, if you engage an attorney to do that for you, your attorney, without needing to wait for some administrative procedure, can get an instant right to sue notice.

 

Suing your employer for medical condition discrimination in California

It’s your civil right to enjoy the opportunity of seeking and holding employment without any discrimination based on a medical condition. Generally, an employee needs to just file a complaint in a civil court. This demands getting “a right to sue’ notification before you can take your case to court. Bringing an action in court is only advised if you’ve got an attorney. Without needing to wait for any investigation by the DFEH, your attorney can help you obtain the notice and file your matter in a civil court in California.

 

Employer’s Retaliation against workplace discrimination lawsuits

If your employer moves to retaliate against you for reporting discrimination, you can file a complaint with the DFEH. An employer should not fire an employee for bringing a workplace discrimination lawsuit. Doing so is likely to be considered a retaliatory move, and may be regarded as wrongful termination.

 

Workplace Safety in California

Martin

Workplace Safety in California

Are you concerned about the safety of your life and health at your workplace? Are you worried about who is responsible for what when it comes to addressing safety protocols at work? Look no further – the California Division of Occupational Safety and Health (Cal/OSHA), the agency overseeing the compliance with the applicable health and workplace safety laws in California is with you. One thing you need to get clearly is that the law recognizes your right to the enjoyment of a safe and healthy workplace in discharging your day-to-day duties.

Conversely, that is to mean your employer has a duty of care in this regard. Also, it’ll interest you to discover that, courtesy of the COVID-19 pandemic, as you would later read in this piece, the standard of this duty of care seems to have been raised. The thrust of this edition is to offer a simple summary of the primary employer adherence responsibilities under the professional health and safety laws in California.

Curiously, you’d agree with us that a secure work environment is significant for sustaining personnel morale and remaining competitive. Sadly, there are huge costs in managing workplace eventualities by way of property destruction, employee compensation overheads, lost productivity, which cannot be overemphasized. To protect both life and property, compliance with workplace orders is important resulting in grave penalties for not complying.

Burning Legal Issues

Interestingly, one of the front-row states that have got a working health and occupational safety program in place is the State of California. Today, in what is known as “Safety Orders”, the state of California has enacted health and safety orders in their thousands. These “Safety Orders” usually address matters more carefully than most of the federal law counterparts. An effective workplace health and safety compliance in California demands an exhaustive recognition of the standards in California. In essence, it considers the way investigations operate and how California demands higher penalties for willful or recurring violations.

What’s the Law in California?

In 1973, the California Occupational Safety and Health Regulations were promulgated. With a few exceptions, employers of labor in California are required to take to Cal/OSHA. As one of the 25 states whose safety and health programs have the federal government’s approval, such plans, if they exist, precede the federal OSHA.

The Cal/OSHA covers nearly every employer and employees (civil servants inclusive) in California. Although federal employers are exempted, they are obligated under the requirements of the federal OSHA. Back in California, the Department of Industrial Relations (DIR) within the Labor and Workforce Development Agency of the state is primarily responsible for overseeing the Cal/OSHA program. Other major units relevant to Cal/OSHA are as follows:

  1. Occupational Safety and Health Standards Board
  2. Division of Occupational Safety and Health (DOSH)
  3. Occupational Safety and Health Appeals Board

Knowing your rights as an Employee

Like we remarked earlier, there are rights to which you’re entitled as an employee. These are:

  • Get trained by their employers about employees’ rights and workplace accidents
  • Demand response from employers to address violations and accidents
  • Get information on illnesses, infections, injuries, and toxic substances in their workstation
  • Lodge a complaint with Cal/OSHA where an employee thinks that violations of Cal/OSHA requirements are taking place or that workplace hazards occur
  • Take part in the official inspection of their workstations by Cal/OSHA and at the same time know more about the outcomes of such inspection(s).
  • Participate in any proceedings to talk over the objections of the employer to the citations of the Cal/OSHA or to deliberate about alterations in abatement deadlines.
  • Lodge an official appeal of deadlines for the modification of dangers
  • Make a whistle-blower complaint to the Cal/OSHA
  • Demand investigation of likely workplace health dangers

If you believe that your workplace is not safe or healthy, you have a right to complain. On working on your complaint, during an inspection, for example, Cal/OSHA does not reveal your identity to your employer. Consequently, after a proper inspection has been done, Cal/OSHA notifies you of the results of such inspection. Where Cal/OSHA believes that no violation of standards has occurred, it makes a written notification to the complainant who may then demand a review of this determination.

How your employer is responsible

Aside from the comprehensive obligations to make the workplace “safe and healthful”, the California Labor Code expects from employees certain specific others. Employers under the Cal/OSHA need to specifically do these:

  • Train their employees on the modalities of workplace safety
  • Set up, execute, and sustain a workable Illness and Injury Prevention Program (IIPP).
  • Check workstations to detect and address unsafe and dangerous situations
  • Ensure employees get and utilize safety equipment and tools and appropriately maintain this gear
  • Utilize color codes, labels, posters, signs to caution employees regarding likely dangers
  • Set up or bring up-to-date operational processes and relate those processes to employees.
  • Offer medical tests and drills when needed by Cal/OSHA benchmarks
  • Report, immediately, any grave injury, sickness, or demise of an employee, happening in a workplace or related to employment.

What are an employee’s responsibilities under Cal/OSHA?

Generally, although Cal/OSHA does not mention any non-managerial or non-supervisory employees for violating their responsibilities, nevertheless, employees are required to follow all lawful employer health and safety regulations. Equally, they need to use the personal protective kit expected of them while working.

Specific safety orders obtainable under Cal/OSHA

There are General Industry Safety Orders under the Cal/OSHA that cover most employers. However, it should be noted that the applicable ones are unique to the nature of a definite workplace. So, these safety orders differ from one industry to another. Since there is no hard and fast rule to which safety order is applicable, where a conflict occurs as to which is applicable, the precise industry Safety Order can be applied. Some of the most usually mentioned GISOs are as follows:

  • Injury and Illness Prevention Programs (IIPPs)
  • Emergency Action Programs
  • General Cleaning
  • Communication of Hazard
  • First Aid
  • Blood-borne pathogens
  • Machine guarding
  • Personal Protective Kit
  • Materials Storage
  • Industrial Vehicles

COVID-19 (AB 685)

Coming into effect on January 1, 2021, the AB 685 increases the authority of the Cal/OSHA to make Orders Prohibiting Use (OPU) for workstations that suggest certain risks of some impending danger associated with COVID-19.

The law also demands employers to offer notice within a business day of likely exposure to COVID-19 in the workplace to every employee present at the workstation within the communicable period that may have been open to the viral infection. What’s more, the AB 685 improves reporting benchmarks to domestic health agencies in the occurrence of a COVID-19 pandemic in the work environment.

To Cap it all

Again, where you perceive a violation of the workplace safety requirements to have been violated, it’s advisable you file a complaint with the Cal/OSHA. It is not unlikely that you might have been a victim of workplace hazards due to your employer’s lip-service to workplace safety. If that’s the case, you may want to contact a labor and employment attorney to help you consider the steps available to you in your specific situation.