Many employers offer light duty programs to employees who are temporarily disabled. Reasonable accommodation obligations imposed by California's Fair Employment and Housing Act (FEHA) may come into play when administering such programs. A recent California appellate court case, Atkins v. City of Los Angeles, No. B257890 (February 14, 2017), provides important lessons regarding light duty accommodations for employers.
Trainees Placed on Light Duty
Five recruit officers of the Los Angeles Police Department suffered temporary injuries while training at the police academy. City doctors restricted their activities in various ways such that they were unable to continue training at the academy. The city placed the recruits in a "Recycle" program, which gave the recruits administrative desk jobs while they recuperated. While in the Recycle program, the recruits received full compensation and benefits.
Historically, some recruits were allowed to remain in the light duty Recycle program until they healed or were deemed permanently injured. However, while the five plaintiff recruits were in the Recycle program, the department changed the policy in order to comply with a legal mandate regarding the maximum period allowed for recruits to complete training and a probationary period. The department limited participation in the Recycle program to six months. Subsequently, the department ended the light duty program while the plaintiffs were still recuperating from their injuries.
Resign or Be Discharged
Rather than allowing the recruits to remain in their light-duty assignments, the department informed them that they had to resign or the department would discharge them, unless they could get immediate medical clearance to return to the academy. Those that resigned would be eligible to return to the academy when they had fully recuperated. None of the recruits were able to obtain the necessary clearance, and none of them resigned. The department discharged or allegedly constructively discharged all of them.
Millions Awarded at Trial
The five recruit officers filed a lawsuit alleging disability discrimination and failure to accommodate under FEHA, among other legal claims.
A jury found that the city unlawfully discriminated against the recruits based on their physical disabilities, failed to provide them reasonable accommodations, and failed to engage in the interactive process required by FEHA. The jury awarded the plaintiffs over $12 million in damages. The city appealed.
No Discrimination Against Those Unable to Perform Job
On appeal, the court overturned the jury's verdict that the city discriminated against the recruits. The court looked to the coverage definitions in FEHA. The law excludes from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties of the position held.
In this case, the plaintiffs could not perform the essential functions of a police recruit. The plaintiffs argued that the relevant question was whether they could perform the essential functions of the positions for which they sought reassignment. The court rejected this argument. "The plaintiffs' argument improperly conflates the legal standards for their claim ... for discrimination, and their claim ... for failure to make reasonable accommodation, including reassignment." The court continued, "In connection with a discrimination claim ... the court considers whether a plaintiff could perform the essential functions of the job held—or for job applicants, the job desired—with or without reasonable accommodation."
Because the essential functions of a police recruit included a number of physical activities that none of the injured plaintiffs could perform, with or without accommodation, they were not qualified for the position and therefore could not meet their burden of proof as to disability discrimination.
Reassignment as a Reasonable Accommodation
Although the court found that the evidence did not support a discrimination claim, it determined that the evidence did support the jury's verdict that the city failed to reasonably accommodate the recruits.
The court noted that, among other reasonable accommodations, FEHA includes "reassignment to a vacant position" with essential functions the employee can perform. Summarizing an employer's obligation under FEHA, the court observed that where a disabled employee requests reassignment as an accommodation, FEHA requires the employer to offer the employee comparable or lower-graded vacant positions for which he or she is qualified. FEHA does not require reassignment if there is no vacant position the employee is qualified to fill. Nor does FEHA generally require the employer to promote the employee or to create a new position for the employee.
The court further determined that the duty to offer reassignment extends to "probationary" or "pre-probationary" employees, including the police recruits involved in this case. However, just as for all other employees, the probationary employees must be qualified to fill the vacant position, and the reassigned position must be comparable in pay and status.
On appeal, the city argued that reassigning the plaintiffs to the light duty Recycle program until they recovered or became permanently disabled was per se unreasonable because FEHA does not require employers to accommodate injured employees indefinitely or to convert a temporary position into a permanent one.
The court rejected this argument. Although FEHA does not generally require an employer to make a disabled employee's temporary assignment permanent or to create a new position for a disabled employee, this is not the case where the employer regularly offers such assistance to disabled employees. Where that is the case, the employer may violate FEHA by not making those accommodations for all employees.
Such was the city's mistake, according to the court. The city violated FEHA because it denied the plaintiffs ongoing participation in the light duty Recycle program, as it had done for others.
The court noted that other cases have held that an employer may change its policy regarding light-duty positions so long as such changes are made before the request for accommodation is made. In this case, while the plaintiffs were on light duty, the city did change its program to limit the duration of light duty. However, the city had a longstanding practice of allowing injured recruits to remain in the Recycle program indefinitely until they healed and could return to the academy or until their disabilities became permanent. "While FEHA does not require the Department to accommodate recruit officers injured after the change in policy by allowing them to remain in the Recycle program indefinitely, the City could not treat the plaintiffs differently than it had treated other recruit officers who were injured before the change in policy." In other words, these recruits should have been "grandfathered in" by the prior policy.
In a separate section of the opinion, the court determined that $6 million of the $12 million verdict was based on speculative future damages. The court ordered the matter back to the trial court for further proceedings.
Consider Reassignment or Transfers. This case serves as a reminder to employers that when a disabled employee cannot perform the essential functions of his or her job, the company may want to consider reassigning the employee to an open position for which the employee is qualified.
Light Duty or Not? Generally employers are not obligated to offer light duty. But there are many good reasons to offer such a program. The Atkins case highlights the importance of a well-designed, carefully articulated light duty program. When designing such a program, consideration may be given to who may be eligible, the types of temporary duties, and the duration of participation, among other factors.
Precedent Matters. In this case, part of the reason that the city was found to have failed to reasonably accommodate the recruits was that it had offered the benefit for indefinite periods in the past. When accommodating employees by providing light duty, best practice is to carefully consider that doing so may set a precedent. In some circumstances, the employer may be required to extend the same benefit to subsequently disabled employees.
Change With Care. The court in this case stated that the city was free to change its light duty program to restrict its duration or eliminate it entirely. However, before changing the rules, employers may want to give careful consideration to how the change may affect those currently participating in the program. In this case, the court determined that the city failed to reasonably accommodate the recruits who were already in the light duty program when the rules changed.
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