Question: I’m worried about my job. I’m having surgery soon, and will be on light duty at work for four weeks. My employer wants to cut my pay in half while I’m on light duty. All the information I’ve found on the internet talks about workers compensation, but this isn’t a workers compensation problem – it’s a medical condition I was born with, and it requires periodic hospital visits like this one. Can employers cut your pay when you have to go on light duty due to a medical condition, especially a chronic one?
– Morgan B., Davis, CA
Answer: A couple laws protect workers who have to take a leave of absence for medical reasons. The first one is a federal statute signed by Bill Clinton called the Family and Medical Leave Act, or FMLA.
Depending on the employer (small employers are exempt), the FMLA says that an employee can take unpaid time off for medical reasons without getting fired. However, there’s nothing in there that requires the employer to keep paying the employee during the time off. If this were a one-time problem rather than a chronic condition, your employer could give you unpaid time off while you recover. The employer might actually think they are being generous by letting you show up to work on “light” duty, especially if your duties are really, really light. Assuming your workload has been reduced so much that your employer needs to hire a whole other person to pick up the slack, it makes more financial sense for your employer to put you on unpaid leave until you recover. At least, that will be the employer’s argument. And they can do that, in most circumstances, under both the FMLA and its complementary California statute.
On the other hand, since this is a chronic medical condition requiring repeated visits to the hospital, you could fall under the vastly more powerful Americans with Disabilities Act (“ADA”). The ADA requires an employer to make reasonable accommodations for disabled employees.
“Disabled” persons are those who are substantially limited in one or more major life activity. A person without legs, for instance, would be limited in walking, which is definitely a major life activity. Someone with congestive heart failure, a condition that can make it impossible to walk more than a few yards without running out of breath, also would be “substantially limited” in their ability to walk. But a person with a stubbed toe who needs to hop around for a few minutes? Probably not.
I don’t know what your condition is, but an ailment that prevents you from working sounds like it substantially limits a major life activity. You would qualify as disabled, which means under the ADA, your employer has to make reasonable accommodations for you. This could include putting you on light duty or making some allowances for you to help you do your job. Cutting your pay in half, though, more resembles discrimination against the disabled than an accommodation.
There are exceptions to the ADA’s protections, however. If your disability absolutely prevents you from doing your job any more – even with reasonable accommodations – then your employer can, in some circumstances, fire you. A disabled employee who can still perform adequately (with just a little extra help) would have a good claim against his employer if he were terminated or his pay were reduced because of the disability. The employer cannot reduce a disabled employee’s wages just because giving that employee an accommodation costs a bit more money.
Again, I do not know what “light duty” entails, and I do not know what you do for a living, so it’s hard to give you a perfect answer. California’s Department of Fair Employment and Housing can help you file a claim and let you know whether you’ve got a strong case against the employer. They’re slow to respond, but thorough when they get around to it. (They’re also free, unlike a lawyer.) The complaint process is described on their website: http://www.dfeh.ca.gov/Complaints_ComplaintProcess.htm
