Disability Discrimination: Court Says Look For Alternative Jobs, Even If Workers Don’t Ask; How To Avoid Accommodation Traps

Your obligation to accommodate disabled workers may be much broader than you think. According to a new California Court of Appeal ruling, if one of your employees becomes disabled and can’t perform their job, you must suggest possible reasonable accommodations-even if the employee doesn’t ask for your assistance. What’s more, you might be required to help the person find another position in your organization.Another recent case shows the high price you can pay for firing a disabled employee without exploring all reasonable accommodation options.

Airline Grounds Pilot With AIDS

Ronald Prilliman was a United Airlines pilot. Following Federal Aviation Administration regulations, United refused to let him fly after learning he had been diagnosed with AIDS. Prilliman went on medical disability leave and began receiving benefits.

Pilot Goes After Employer

Prilliman never asked United to transfer him to another position or otherwise accommodate him. But he sued the airline under California’s disability discrimination law-which is similar to the federal Americans with Disabilities Act (ADA), except that it covers employers with five or more employees. He claimed United had to take affirmative steps to reasonably accommodate his disability, including helping him find a non-flight job in the company.United asked the court to dismiss the case. It claimed that placing Prilliman on medical disability was itself a reasonable accommodation. The company argued that it had no obligation to assume he wanted another position because he never requested one.

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Your Duty To Explore Accommodations

The Court of Appeal said Prilliman’s case could go forward. Citing prior decisions under the ADA, the court said an employer who knows an employee is disabled must take steps to accommodate the person-even if they haven’t asked for it.

What’s more, the court said you must tell the worker about other job opportunities in the company and determine whether the employee is interested in and qualified for them. However, you are not required to offer a transfer if it would cause you undue hardship.

The court also pointed out another situation in which you may have to help a disabled worker find another job-if you have a policy or practice of assisting employees in transferring to an alternative position when they can no longer do their current job.

Huge Verdict For Disabled Employee

Another new case illustrates the high price for mistakes in handling reasonable accommodation issues. Bruce Atwood, a maintenance equipment operator for the city of Longmont, near Denver, Colo., injured his back, resulting in work limitations. The city placed him on involuntary leave and fired him a few months later.

Atwood sued the city under the ADA, charging that it failed to reasonably accommodate his disability. The city claimed Atwood didn’t qualify for protection under the ADA because his injury did not fall within the law’s definition of a disability. It also argued that it nevertheless did try to accommodate him. However, the jury sided with Atwood, finding the City hadn’t done enough, and awarded him $325,000 plus $132,000 in attorneys’ fees.

How To Avoid Reasonable Accommodation Traps

It’s clear that reasonable accommodation issues can be tricky-and costly-if not handled carefully. Here are some ways to avoid problems:

1. Offer to accommodate known disabilities. Once you know an employee is disabled and unable to perform their essential job functions, it’s your responsibility to seek out a reasonable accommodation even if the employee doesn’t ask for one. This could include a new job. But the employee must be qualified for the position, and the accommodation cannot be a hardship on you.
2. Consider disability leave. The court in the United decision suggested that disability leave for a reasonable period of time (instead of termination) may still be an appropriate accommodation under certain circumstances. This could be a viable alternative if, for example, there is no other job open that the employee can perform.
3. You’re not required to create jobs. If the employee doesn’t qualify for any available positions, you don’t have to create a job or bump someone else to fulfill your reasonable accommodation obligation.
4. Don’t rely on disability benefit determinations. Another issue that came up in the United case was whether it was fair for the pilot to claim benefits for total disability, while at the same time say he could work in a non-flight position.

The court ruled that receiving disability benefits because he was unable to fly didn’t mean the pilot couldn’t perform another job. That’s because, as pointed out recently by the federal Equal Employment Opportunity Commission, the standards under state and federal disability discrimination laws for determining whether someone is disabled and qualified to perform the job can be very different from the standards used to determine eligibility for disability benefits such as Social Security, workers’ comp or disability insurance.