Yesterday, we looked at a case involving an injured employee who received a 100 percent total permanent disability rating in a workers’ compensation proceeding. Is the employer allowed to refuse his request to return to work?
Cathleen Yonahara spells out the rules and the court’s conclusion below; she’s an attorney at Freeland Cooper & Foreman LLP in San Francisco.
For the facts of the case, click here.
Employer Must Reasonably Accommodate Disabilities
Under FEHA, you must reasonably accommodate employees’ disabilities. An employee can prevail on a failure-to-accommodate claim by establishing that:
- he has a disability covered by the FEHA;
- he can perform the essential functions of the position with or without reasonable accommodations; and
- the employer failed to reasonably accommodate his disability.
Reasonable accommodation under FEHA means a modification to the workplace that enables the employee to perform the essential functions of the job held or desired.
If the employee can’t be accommodated in his current job and the requested accommodation is reassignment, the employer must make affirmative efforts to determine whether a position is available.
However, the California Court of Appeal has held in previous cases that “[t]he responsibility to reassign a disabled employee who cannot otherwise be accommodated does not require creating a new job, moving another employee, promoting the disabled employee or violating another employee’s rights.” The duty to reassign a disabled employee may be triggered, though, if an already funded, vacant position at the same level exists.
When an employee files a claim for failure to accommodate based on a refusal to grant a requested assignment, he must demonstrate that he “can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position.”
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Under FEHA, you are relieved of the duty to reassign a disabled employee if there is no vacant position for which he is qualified or the reassignment would cause an undue hardship.
Burden Was on the City
In this case, the LAPD maintained several “permanent, light-duty assignments” for police officers who couldn’t perform the essential functions of a police officer because of medical limitations.
In 2002 and 2003, the department employed approximately 8,500 police officers, about 3,000 of whom worked with medical limitations. Among those 3,000, the LAPD employed approximately 250 officers in “permanent light duty positions that would not allow them to work the field.”
The appellate court concluded that because the LAPD maintained permanent light-duty positions, the issue was whether Cuiellette (the plaintiff) could “perform the essential duties of the light duty assignment he was given on his return to work and not whether he was able to perform all of the essential duties of a police officer in general.”
Thus, the trial court correctly focused on the essential functions of the court desk position Cuiellette sought rather than the essential functions of the police officer position he previously held.
The city didn’t dispute the trial court’s finding that Cuiellette was able to perform the essential functions of the court desk position when he returned to work on May 27, 2003. Further, it didn’t establish that either reassigning him to a desk position or following the light- duty policy caused an undue hardship to the LAPD.
The appellate court concluded that “[b]ecause [Cuiellette] was qualified to perform the essential duties of the court desk position and was placed in that position [in accordance with] the LAPD’s accommodation policy then in effect, his removal from that position based on the 100 percent total permanent disability rating [he] received in the workers’ compensation proceeding violated the accommodation provisions” of the FEHA.
Cuiellette v. City of Los Angeles (California Court of Appeal, Second Appellate District, 4/22/11).
Bottom Line
The takeaway from this case is clear: You must evaluate an employee’s ability to perform the essential functions of his position, with or without reasonable accommodation, regardless of the rating he receives from a workers’ comp proceeding.
Even if he receives a 100 percent disability rating, as in this case, he still may be able to establish that he can perform the essential functions of the position held or sought, with or without reasonable accommodation.
Another important lesson from this case is that if an employee seeks reassignment as a reasonable accommodation, the relevant inquiry is whether he is able to perform the essential duty of the position sought, rather than his current position.
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Workers’ comp is one of the few areas of employment law that are almost entirely governed at the state level. And it’s complicated, to say the least:
- What qualifies as a covered injury or illness?
- Should you self-insure?
- Who’s entitled to workers’ comp benefits?
- What do you need to know about the State Compensation Insurance Fund (SCIF)?
- How are premiums calculated—and how can you keep yours as low as possible?
- What should be included in your Injury & Illness Prevention Program (IIPP)?
- What workers’ comp notices must you distribute to employees—and when?
- How do you properly calculate benefits for injured employees?
- What should your return-to-work program look like?
- How does workers’ comp interact with other state and federal leave laws, including FMLA/CFRA and ADA/FEHA?
- What can you do to reduce the risk of workers’ comp disputes—and fraud?
- How should you respond to a workers’ comp-related lawsuit?
Fortunately, answers to all of these questions and more are covered in depth in our comprehensive, 136-page HR Management & Compliance Report, Workers’ Compensation in California: A Complete Guide for California Employers.
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“[t]he responsibility to reassign a disabled employee who cannot otherwise be accommodated does not require creating a new job, moving another employee, promoting the disabled employee or violating another employee’s rights.”
The problem is that employees rarely know that, so their expectations can be too high and their disappointment can lead to frivolous claims.
“[t]he responsibility to reassign a disabled employee who cannot otherwise be accommodated does not require creating a new job, moving another employee, promoting the disabled employee or violating another employee’s rights.”
The problem is that employees rarely know that, so their expectations can be too high and their disappointment can lead to frivolous claims.