In the wake of tragedies, like the recent shooting in San Bernardino, employees may be greatly impacted, BB&K Partner Joseph Ortiz writes in the Press-Enterprise’s Best in Law column.

All of us in Southern California’s Inland region were touched by the tragedy that unfolded on Dec. 2 in San Bernardino.

The effects of the shooting are not limited to the 14 who were killed or the 22 who were injured when terrorists attacked.

Mindful employers in the region immediately recognized the need to make space for grief and healing. For instance, San Bernardino County, much to its credit, largely closed its facilities for the remainder of that work week. Many private employers in the region immediately allowed employees to use “bereavement” time.

Stress, intense grief or depression can prevent employees from performing their duties. Some employers, however, are prone to discount injuries or disabilities that are not physically observable. Despite our best efforts to educate, there are employers that will immediately suspect abuse when a poor performer calls in absent due to stress. But it is critical that employers respectfully approach these issues, provide required leave, and make reasonable accommodations, when necessary.

Paid Sick Leave: First, while there is no current requirement to provide “bereavement” time, employers should be aware that the Healthy Workplace Healthy Family Act of 2014, sometimes referred to as paid sick leave, mandates that California employers provide at least 24 hours or three days of paid sick leave per year that may be used beginning the 90th day of employment. Many employers provide much more.

By law, this paid sick leave must be available for use when time off work is needed to address the employee’s own health or the health of family members. This would cover a situation where an employee’s medical provider has advised against work due to stress or depression. Importantly, the law provides a rebuttable presumption of unlawful retaliation if an employer denies the right to use the sick days, and the California Labor Commissioner’s Office appears to have taken the position that a doctor’s note cannot be required to use paid sick leave under this law.

Protected Medical Leave: Second, if the business has 50 or more employees within a 75-mile radius, it is likely obligated to provide up to 12 weeks of unpaid protected medical leave under the federal Family Medical Leave Act and the state equivalent, known as the California Family Rights Act.
FMLA and CFRA both provide protected leave when necessary because of a “serious health condition” of either the employee or the employee’s covered family members. Generally, with the exception of pregnancy issues, the protected leaves run concurrently. The leave may be taken in a single shot or may be taken on an intermittent basis; although, intermittent leave must be medically necessary and an employee must work with the employer so as not to unduly disrupt operations.

An employer may request certification of the need for the leave. Be careful, however: An employer cannot force an employee with stress or depression to use leave unnecessarily or prematurely when reasonable accommodations are available that would allow an employee to continue working.

Interactive Process and Reasonable Accommodation: Finally, under the Americans with Disabilities Act and California’s Fair Employment and Housing Act, employers are obligated to engage in a timely, good faith “interactive process” with disabled workers to determine whether any reasonable accommodations would allow them to perform the essential functions of their job. Under FEHA, a disability is defined as any physical or mental impairment that “limits” a major life activity. Therefore, stress or depression affecting an employee’s ability to report to work should qualify as a disability and trigger the law. Mindful employers should reach out in writing to set up an interactive-process meeting for the purpose of exploring the scope of the employee’s limitations and what potential accommodations might be available. Typical accommodations might include, job restructuring (e.g., “light duty”), adjustment of work hours, or providing tools or equipment. In certain circumstances, the provision of additional leaves of absence, beyond what was already provided pursuant to FMLA and CFRA, or reassignment to a vacant position may be a reasonable accommodation.

* This article first appeared in The Press-Enterprise on Dec. 27, 2015. Republished with permission.