Classified Employees’ Probationary Periods May Be Extended as a Reasonable Accommodation for Prolonged Absences Due to Disability


A classified employee’s probationary period may be extended to account for time out on leave due to temporary total disability, according to a recent decision by the California Court of Appeal. (Hernandez v. Rancho Santiago Community College District, Case No. G054563 (5-3-18).) 

The Rancho Santiago Community College District hired Marisa Hernandez as a classified employee subject to a one-year probationary period. Although the collective bargaining agreement required evaluations at three months and seven months of employment, Hernandez was not evaluated. Eight months into her probationary year, Hernandez underwent surgery for a work-related injury, and took a workers’ compensation leave for four months. Hernandez’s performance had not been evaluated prior to the surgery. Several weeks before her hiring anniversary, the District notified Hernandez that her employment was terminated. Hernandez sued the District under the California Fair Employment and Housing Act (FEHA), alleging the District failed to reasonably accommodate her by refusing to extend her probationary period by the amount of time she was out on approved leave. The District argued that the Education Code required it to take action prior to Hernandez’s hiring anniversary, or she would have automatically become a permanent employee without having been evaluated. The trial court ruled in favor of Hernandez and awarded damages. The District appealed.

Education Code section 88013 provides that classified employees of a community college district are “designated as permanent employees of the district after serving a prescribed period of probation which shall not exceed one year.” The court considered whether section 88013 requires that a probationary classified employee become permanent on the anniversary date, even if, during the first calendar year of employment, the employee was absent from work for an extended period due to disability, and therefore unavailable to have his or her work performance evaluated.

The Court of Appeal held that “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. In this way the employer receives the full 12-month period of time in which to evaluate the employee’s performance, and the employee does not lose her job because she suffered a job injury resulting in her temporary total disability.” The court affirmed the trial court’s ruling that the District denied Hernandez a reasonable accommodation in violation of the FEHA by refusing either to deduct the time Hernandez was not able to work from her one-year probationary period, or to extend the probationary period by the number of days she was off work.

The court also held the District failed to engage in a good faith interactive process. because it indicated to Hernandez she would not be terminated for taking leave and then terminated her when she took leave.

The decision provides important guidance on this notoriously ambiguous issue, with which community college and K-12 districts frequently struggle. Prior to this decision there was no published authority holding that a classified employee’s probationary period could be extended. Therefore, it was something of an open question whether this was an option in the case of a probationary employee who required an extended medical leave of absence. Districts faced a difficult choice of whether to (a) release an employee and risk a claim of discrimination, or (b) to grant permanency without sufficient opportunity to observe and evaluate job performance, or (c) to agree to extend the probationary period, without assurance that the courts would uphold the extension. This case affirms that the maximum one-year probationary period established by Education Code section 88013 (and presumably also Education Code section 45113, applicable to K-12) may be extended, at least under some circumstances.

While the same principle should apply in a merit system district, the case did not address the merit system context, and there are important differences in the statutory schemes governing merit and non-merit districts. Depending on circumstances and contract language, classified employee unions may also assert bargaining obligations associated with extension of a probationary period. The case does not apply to K-12 certificated or community college academic employees; the effect of leaves of absence on the completion of probation for such employees is governed by entirely distinct statutes.

When a probationary employee takes or requests an extended leave of absence for medical reasons, prompt and proactive communication between employer and employee is critical. By addressing as soon as possible how the leave of absence will be dealt with in relation to the probationary period, the employer may increase the likelihood that the employee returns to work successfully. Even if this is not possible, timely and effective communication may help the employer defend against claims of disability discrimination,.

The Hernandez decision illustrates the importance of taking these steps:

  • Evaluate probationary employees according to contractual timelines
  • When possible, discuss the effect of the leave with the employee before the leave begins
  • Hold an interactive meeting with the employee and document the discussion
  • Monitor the leave and the employee’s anticipated return date, including any extensions of the leave, to accurately calculate the extended probationary period
  • Train staff who interact with employees to provide accurate information

As always, consultation with legal counsel regarding the circumstances of a particular employee is advisable.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. ©2018 Atkinson, Andelson, Loya, Ruud & Romo.



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