In a narrow decision based on specific facts involving temporary total disability, a California Court of Appeal recently addressed circumstances when a classified probationary employee’s probationary period may be extended beyond one year.
In Hernandez v. Rancho Santiago Community College District (2018) 18 Cal. Daily Op. Serv. 4160, the District hired Hernandez as a probationary classified administrative assistant. Eight months into her year-long probationary period, she took a medical leave following a work-related injury resulting in temporary total disability. She was scheduled to return to work on or shortly after her one-year anniversary date of hire. The District terminated her employment during the probationary period, while she was on leave, because her performance had not been reviewed.
The employee challenged the dismissal and argued that the District failed to provide her with a reasonable accommodation and failed to engage in the interactive process as is required by the Fair Employment and Housing Act (FEHA). The court first looked at Education Code section 88013 which, like its K-12 counterpart for classified employees, provides that the “district shall prescribe written rules and regulations, governing the personnel management of the classified service … whereby these employees are … designated as permanent employees of the district after serving a prescribed period of probation which shall not exceed one year.” (Ed. Code, § 88013; see Ed. Code, § 45113 [applicable to K-12 classified employees].) In this case, the District had a one-year probationary period and determined that if it did not release the employee while she was on leave, it would be unable to do so when she returned after her probationary period ended.
Reasonable Accommodation. An employer violates FEHA where an employee shows: (1) he/she has a disability covered by FEHA; (2) he/she is a qualified individual (meaning the employee can perform the essential functions of the position with or without a reasonable accommodation); and (3) the employer failed to reasonably accommodate the employee’s disability. The first two elements were not disputed. As for the third, the District argued it accommodated the employee by giving her time off work for surgery and recovery. Although the District gave her time off work, the court found that “the accommodation can hardly be considered reasonable when it included the consequence that she would lose her job if she took the time off to undergo surgery.”
The court held that the District failed to reasonably accommodate the employee by releasing her while on leave. “When a probationary employee suffers a temporary total disability requiring absence from work for an extended period of time, that period may be deducted from the employee’s probationary period.” This option, which would allow the District to extend the employee’s probationary period for a corresponding amount of time, the court reasoned, would provide the employer with the time to evaluate the employee, and the employee would not lose her job just because she needed leave during her probationary period.
Interactive Process. The court also held that the District failed to engage in the interactive process which is an informal process requiring the employer engage with the employee to attempt to identify reasonable accommodations enabling the employee to perform his/her job effectively. Given that the employee attempted to discuss her situation several times and was rebuffed, the court concluded that the District violated FEHA for failing to engage in the interactive process.
Whether a classified employee’s probationary period could be extended due to an authorized leave of absence had been an open question. In this case, involving temporary total disability during part of the probationary period, the court held that the classified probationary period may be extended past the one-year period.
Districts should engage in the interactive process with employees, including probationary employees, where they have notice that, due to a disability, an employee may need a reasonable accommodation in order to perform the essential functions of his/her position. Utilizing the interactive process, when a probationary employee goes on an extended leave, analyze whether his/her probationary period will be extended as a result and ensure the employee is made aware of this extension in writing. Ensure compliance with any related collective bargaining agreement provisions, as well. The individual facts weigh heavily in these types of cases. Prior to extending a probationary period or releasing a probationary employee who has been or remains on leave, it may be helpful to consult with legal counsel to analyze individual circumstances.
If you have any questions regarding this decision, please contact a DWK attorney.