You Might Be Entitled to Additional Medical Leave After Your FMLA Leave Is Exhausted

One of the common mistakes that employers make is terminating an employee right after their FMLA medical leave is exhausted without inquiring whether that employee might need an extension to their medical leave due to their medical condition.  Under the ADA and FEHA (California Fair Employment and Housing Act), a qualified disabled employee may be entitled not only to medical leave but he may also be entitled to an extension of a previously granted medical leave. Thus, extending medical / disability leave beyond that which is provided/limited by FMLA might be one type of accommodation that the employer should consider in many cases, where the employer has a reason to believe that this might be one of the effective accommodations.

Of course, ideally the employee who needs more time off work for medical reasons after his FMLA is exhausted should alert his employer in writing that he needs that additional medical leave and why. This is especially important if it’s not clear to the employer why you might need more time off and if the employer seeks additional information to substantiate the need for that additional leave. While the employer might not be entitled to see all your  medical records or to know all the details of your diagnosis and medical history, they are generally entitled to know the general information about your underlying limitations that force you to continue to remain on leave or any other conditions that require an accommodations. The law logically recognizes that in order for employers to comply more effectively with their accommodations obligations to disabled workers, they should have the necessary information about those workers’ limitations.

One typical mistake that employees make in this kind of situation is refusing to disclose the reasons for needing additional leave and being too concerned about confidentiality. In this situation, however, an employer has the right to know general information about the reasons that the employee is asking for that additional leave. This may include additional medical documentation reflecting the need for that additional leave. Generally, it is in the employee’s best interest to cooperate with the employer’s requests for more information in order to maximize the chances of having that additional leave approved or, if the employer decides to violate the law and refuse such a request – have a better legal claim for ADA/FEHA disability law violations.

It is also important to make sure that it doesn’t look to the employer like that additional leave you request is indefinite. This is because under the law the employer doesn’t have to provide additional medical leave, if you don’t even have an estimated date of return to work, or if it reasonably appears to the employer like you will not be able to return to work at all.   Therefore, when you submit a request for additional medical leave, make sure that it includes your anticipated date of return. You will have separate opportunities to extend that leave further later, if necessary, but your medical leave documentation should always have an expiration date.

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Workplace Defamation Claims in California – the Basics

Defamation claims arising out of false accusations at workplace can be powerful claims that can be brought along with other wrongful termination claims or as separate slander or libel claims. Not everyone can relate to being sexually harassed, discriminated because of race or disability or retaliated against at work, but most people can relate to the frustration of being accused of something bad that they haven’t done, especially if it leads to a serious damage to their career and professional reputation.

Workplace defamation claims are highly technical. Just because you feel that you have been treated unfairly and accused of things or violations that you haven’t committed, doesn’t mean that you have a legitimate defamation claim against your employer. Below are four basic questions you should ask yourself to determine whether you might have a legitimate claim before you contact an attorney to discuss the possibility of bringing a defamation lawsuit against your employer:

1. Is the defamatory statement in question a statement of fact or an opinion?

The distinction between a fact and an opinion is not always clear, but generally, opinions, however wrong or offensive they might be, cannot be the basis for a defamation claim. Thus, calling an employee “lacking in dedication” or “unmotivated”, etc… is not actionable because these are just subjective statements of opinion that cannot be proven or disproven. On the other hand, stating an an employee is “incompetent” or falsely accusing an employee of theft or a gross mistake at work is a statement of fact which can be a basis for a defamation claim.  Accusations of theft are some of the more common statements that can be actionable as defamation in court.

2. Has the potentially defamatory statement been made outside of an official proceeding?

Defamatory statements made during official proceedings enjoy absolute privilege and cannot give rise to a defamation claim. For instance, if the only time your employer accused you of theft/policy violation etc., was during you unemployment benefits appeals hearing or during some kind of investigation, these statements are absolutely privileged and they cannot be sued in any kind of defamation lawsuit. The same applies to any police related proceedings and investigations and court hearings. To be defamatory, a statement must be made outside of such proceedings.

3. Is there evidence that the publication giving rise to a defamation claim was made with malice / ill will?   

Most false accusations that are stated or written in a workplace context are published internally and enjoy qualified privilege that can only be defeated by showing “malice”. Under the law “malice” can be shown in a number of ways, including reckless failure to investigate, prior ill will between the defamer and the person defamed, and other clear reasons not to believe in the truth of the statement made. In other words, for an internal publication of false accusation to be actionable as defamation, it must be shown that the publication was not made innocently, and that the person who published it did it for some kind of improper reason. This element is critical and many employment related defamation claims live or die by this element.

4. Was the potentially defamatory statement damaging to your reputation?

To be actionable under California defamation law, the statement must be damaging to an employee’s professional reputation. Falsely accusing an employee of having bad breath or of wearing a fake Rolex is not defamatory because it does not injury that employee’s professional reputation. On the other hand, falsely accusing an employee of any kind of crime, such as theft, fraud of of being incompetent or lacking in a certain skill is obviously damaging to that employee’s reputation and can give rise to a defamation case.


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California Enhances Whistleblower Anti-Retaliation Protection to Employees

Effective 1/1/2014, a new, significant amendment to the California Labor Code 1102.5 whistleblower anti-retaliation provision will take effect. Until now, section 1102.5 prohibited any employer from making, adopting or enforcing any rule or policy precluding an employee from disclosing certain violations to a state or federal agency. According to the new amendment, the employers will now be also prohibited from discriminating or retaliating against employees who disclose information internally to a person with authority over the employee or to another employee who has the authority to investigate, discover, or correct the subject violation or non-compliance.

The new 1102.5 section now also prohibits discrimination or retaliation against employees who provide information or testify before “any public body conducting any investigation, hearing or inquiry”. These anti-retaliation provisions protect employees who engage in such acts “regardless of whether disclosing the information is part of the employee’s actual job duties.”

While 1102. 5 previously only prohibited employers from discriminating or retaliating this new law also prohibits “any person acting on behalf of the employer” from making such rules, or engaging in retaliation or discrimination.

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Two Mistakes to Avoid When You Receive a Negative Performance Review, a Warning or a PIP

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Requiring Employees to Be Completely Recovered From Disability or Injury is Generally Illegal

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Medical Staffing Rights of Physicans in California

physician Medical Staffing Rights of Physicans in CaliforniaDecision concerning medical staff membership and privileges are made through a process of hospital peer review. One of the purposes of the peer review process, that must be in place at a hospital, is to protect competent doctors/physicians from being barred from medical practice for arbitrary or discriminatory reasons. Peer review must be conducted fairly, because when it isn’t, it results in the unwarranted loss of a qualified physician’s right to use a hospital’s facilities and deprives the physician of a property interest directly connected to his livelihood.

Generally, the law requires hospital to provide an affected physician subject to discipline a notice and and the opportunity for a hearing, when a peer review committee has recommended a “final proposed action”. The hearing must be held “before a trier of fact” that, as determined by the peer review body, is either “an arbitrator or arbitrators selected by a process, mutually acceptable to the licentiate and the peer review body” or “a panel of unbiased individuals… which shall included, where feasible, a doctor practicing the same specialty as the physician subject to the disciplinary action.”

During the hearing, both parties have the right to call, examine and cross examine witnesses, as well as present and rebut evidence. Upon the completion of the hearing, the parties have the right to a written decision of the trier of fact, including the findings of fact and a conclusion articulating the connection between the evidence produced at the hearing and the decision reached.

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