FEHA Standard, Not ADA, Applies in Back Injury Case

Saturday, July 19, 2003 | 0

FEHA Standard, Not ADA, Applies in Back Injury Case

The California Supreme Court has confirmed that the State's Fair Employment and Housing Act (FEHA) disability provisions were intended to provide broader protections than the federal Americans with Disabilities Act (ADA).

In Francisco Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, (2003) (Reversed and remanded), the Court found that the employee's back injury met the "limited in participating in a major life activity" standard set be the FEHA and the employee was not required to meet the higher "substantially limited" standard of the ADA. This decision confirms that employers will have to consider reasonable accommodations for many injured employees based on the more liberal California statute.

Where an injured employee has requested an interruption that extends beyond five years from the date of injury, the employee must request reinstatement (or an extension of the interruption) before the last day of the agreed interruption or risk losing entitlement to the vocational rehabilitation benefit.

In Coleen M. Stenson (Schlabes) v. WCAB (2003) 68 CCC 299 (writ denied) and Louis C. Simon, Jr. v. WCAB (2003) 68 CCC 510 (writ denied), each employee failed to request reinstatement prior to the expiration of agreed interruption periods. Both the third and fourth District Courts of Appeal determined that subsequent requests for reinstatement of benefits and services were barred by L.C. section 5410 (and also by L.C. section 5405.5 in the Stenson/Schlabes case). Note that requests for reinstatement after the five year statute will only be barred where the employee has been provided a proper Notice of Interruption by the defendant.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, mailto:allanleno@leno-assoc.com.