Document all efforts to accommodate disabled workers

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in Discrimination and Harassment,Human Resources

Employees who claim they suffered emotional distress because of illegal disability discrimination under the California Fair Employment and Housing Act (FEHA) don’t have to rely solely on the workers’ compensation system to adjudicate their claims. If they allege their employers violated FEHA’s disability-protection provisions, they can go to court instead, suing for negligent infliction of emotional distress under state common law.

Advice: Carefully document that you have done all you can do to accommodate known disabilities. That way, you won’t have to worry about a negligent infliction of emotional distress claim.

Recent case: Barry Buchmiller worked for Hines Nurseries. Then he suffered a work-related shoulder injury. Following extensive physical therapy, he returned to work with restrictions. However, the company eventually terminated him, saying Buchmiller’s medical restrictions made it impossible for him to perform any of the available work at the company.

Buchmiller sued for (among other things) negligent infliction of emotional distress, alleging that the company had refused to accommodate his disabilities.

The court dismissed his claim. There was no evidence that the company hadn’t done all it could to help Buchmiller.

The court did rule that employees can sue for negligent infliction of emotional distress—they don’t have to leave it to the workers’ comp system to resolve claims arising from work-related injuries.

In this case, however, Buchmiller’s claim failed. He simply couldn’t show that his employer had committed the underlying wrong—disability discrimination under the FEHA—that could have caused his emotional distress. (Buchmiller v. Hines Nurseries, No. G038463, California Court of Appeal, 4th Appellate Division, 2008)

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