Misconduct MC 235
Health or Physical Condition
This Section discusses discharges that are a direct result of a claimant’s health or physical condition. It is important to distinguish whether the termination of employment was due to absence related to the claimant’s condition or whether the termination was caused by the condition itself. For discharges caused by absence due to illness or injury, refer to BDG MC 15.
Employers must ensure that their employment practices do not discriminate against qualified persons with disabilities in the application and recruitment processes, hiring, advancement, training, compensation or discharge of an employee, or in any other terms, conditions and privileges of employment. An employer must provide easonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability, unless providing the accommodation would be an undue hardship to the employer. An accommodation may be an undue hardship when it requires significant difficulty or expense to implement.
Title 1 of the Americans with Disabilities Act (ADA) became effective on July 26, 1992, for employers of 25 or more employees and July 1994 for smaller employers, those with 15 to 25 employees. Compliance is regulated by the U. S. Equal Employment Opportunity Commission.
Beginning January 26, 1992, Title II prohibited all public agencies, regardless of the size of their work force, from discriminating in their employment practices against qualified individuals with disabilities.
Because it is illegal for a private employer with fifteen or more employees or a public agency, regardless of the size of its work force, to discharge any employee because an individual has a pre-existing or recently incurred injury, illness, disease, or other health related condition or disability, unless the health situation poses a risk to the employee, any other individual or is inconsistent with the employers business requirements, any such discharge would not be for misconduct. (If the discharge is a result of the claimant falsifying information on his/her work application, refer to MC 140, I. Falsification of Work Application.)
B. Contagious, Infectious, or Communicable Disease
There are situations where an employer may legally discharge an individual because of a health condition. Section 28295 of the Health and Safety Code provides in part:
No Employer shall require or permit any person to work in a food processing establishment or vehicle used for the production, preparation, manufacture, sale, or transportation of food if the person is infected with any contagious, infections, or communicable disease which can be transmitted by the food involved.
Example - Discharge Due to Communicable Disease
The claimant was employed for some time as a prep cook in a small restaurant. His primary duties involved chopping fruits, vegetable, preparing various sauces, salads and related items to be consumed by customers of the restaurant. The employer heard rumors of the claimant being afflicted with an infectious form of hepatitis. The employer discussed the health concern with the claimant, who indicated he did not believe he had such an ailment, but did indicate that he had "not felt his best for awhile" and agreed to undergo a thorough doctor’s examination.
The examination revealed that the claimant did have a form of infectious hepatitis. Because the employer had no leave of absence policy and no other positions available, the claimant was discharged. A discharge under such circumstances would not constitute misconduct.
As provided in Title 22, Section 1256-30(d):
Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity . . . are not misconduct, except that in cases of ordinary negligence, misconduct may be found where the claimant has been previously warned or reprimanded for prior similar acts of ordinary negligence and has the ability and capacity to perform satisfactorily. Prior warnings or reprimands, however, do not convert to misconduct an employee’s failure to perform satisfactorily due to inability or incapacity.
C. Definition of Disability
Under the ADA, a person with a disability is someone who has:
A physical or mental impairment that substantially limits one or more of the major life activities; or
A record of such an impairment; or
Is regarded as having such an impairment.
The U. S. Department of Justice regulations, as well as legislative history, note that "impairment means any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs, respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine." Impairment also means "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities."
An impairment is a disability under the ADA only if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.
Major life activities, as found in Section 504 of the Rehabilitation Act, are defined as those basic activities that the average person in the general population can perform with little or no difficulty. This includes caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This may also include, but is not limited to, sitting, standing, lifting, and reaching.
It should be noted that under the ADA a person currently engaging in the illegal use of drugs is not a person with a disability. "Illegal use of drugs" refers both to contraband drugs and the unlawful use of prescription drugs. By the phrase "currently engaging," the Act does not require the drug(s) to have been taken the day of, or even the week before, the personnel action. By "currently engaging," the Act refers to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct. (For information on discharges caused by the use of intoxicants, see MC 270.)