It is often the case where the employee's physician provides a diagnosis of disability together with prescription for workplace accommodation which, includes a reduced work-week that the employee has insufficient sick leave, vacation leave, and FMLA to protect the job. The California Labor Code specifically provides victims of sexual/domestic assault with job protection.
In a recent stewarding case, the UCSF campus labor relations office responded that UC did not have to comply with California state labor law and therefore would not provide the protection the law provides.
UCSF’s disability manager, in conjunction with the UCSF director of Center for Gender Equity (whom UPTE contacted; each campus has one) was able to obtain an unpaid leave (in this particular case, sick leave, vacation leave, and FMLA leave were not sufficiently accrued) for the duration of the physician's requested accommodation. This saved the union from taking this egregious miscarriage of justice to the public through media, governmental officials, UC donors.
For the future, UPTE will now file RFIs (Requests for Information), possibly at each campus, to obtain policy in writing and then to use the policy to change the practice; draft is attached.
An additional note for this case is that the physician provided a diagnosis of Post Traumatic Stress Disorder disability. This is a formal disability and requires accommodation. The diagnosis of disability may also provide standing for the employee to apply for short-term disability insurance, which is mandatorily provided by UC through Liberty Mutual insurance company, in lieu of California State Disability Insurance. During the payments, short-term disability insurance may require a larger employee contribution to medical insurance than what the employee normally pays.
For Post Traumatic Stress Disorder, currently San Francisco Kaiser provides an excellent outpatient treatment plan of 3 days each week, and UCSF provides an excellent outpatient treatment plan of 5 days each week.
As an additional stewarding note: it is important in all situations which involve medical information, that the employee be advised to transmit medical information only to the campus disability manager. This person acts as a trained HIPAA officer to get all medical details relevant to evaluating the employee's ability, to perform the essential functions of the job, and to discuss only the physician's requested accommodations with the employee's departmental human resources and supervisor. It is quite common for the steward to discover that the employee has already released HIPAA protected medical information to the supervisor. In this case, the employee should be advised to refrain from this practice in the future.
In line with this intent for medical privacy, the employee will have to notify the disability manager that the manager is expected to discuss, the case and any meetings, with the union steward who is representing the employee. The steward must be very careful not to release HIPAA information unless directed (in writing/email) by the employee as to what to reveal and to whom. We have found that it is useful to remind the disability manager not to release medical information other than the requested accommodation to the employee's department/supervisor.