The Second Appellate District Provides Guidance Regarding an Employer’s Reasonable-Accommodation Duty
The Second Appellate District's recent case of Cuiellette v. City of Los Angeles (2011) __ Cal.Rptr.3d ___, 2011 WL 1522390, highlights two critical issues that employers must consider when conducting a reasonable-accommodation analysis under the Fair Employment and Housing Act ("FEHA").
First, employers should not refuse to accommodate an injured worker based solely on a 100% permanent total disability rating in a related workers' compensation proceeding. Instead, employers must undertake an independent analysis of an employee's medical restrictions before concluding that an employee cannot be accommodated.
Second, employers must consider their informal policies when determining whether an injured employer can be accommodated. To the extent an employer has an established practice of maintaining permanent light duty positions for disabled employees, the employer must consider whether an injured employee is qualified for those light duty positions.
In Cuiellette v. Los Angeles, the City of Los Angeles sent an injured police officer home after learning that the officer received a 100% permanent disability rating in his workers' compensation proceeding. The officer subsequently filed a FEHA lawsuit and, after a jury trial, was awarded a $1.5 million judgment against the City.
A Permanent Total Disability Rating Does Not Relieve an Employer from the Responsibility to Accommodate an Injured Employee
In Cuiellette, the court referred to its earlier unpublished opinion in the case holding that (1) the officer was not judicially estopped from pursuing his FEHA claim based on the position he took in his workers' compensation proceeding and that (2) a 100% total permanent disability rating was not, at a matter of law, a legitimate nondiscriminatory reason for the adverse employment action. Cuiellette v. City of Los Angeles, 2006 WL 1928526 (Cal.App. 2 Dist.) (unpublished).
In the unpublished opinion, the court had held that the term "permanent disability" as used in the California workers' compensation law does not have same meaning or serve the same purpose as under FEHA. Thus, a 100% permanent disability determination under the workers' compensation law does not preclude an employee from pursuing a FEHA disability-discrimination claim.
Cuiellette's lesson for employers is that they should not mechanically rely on a workers' compensation numerical rating or defer their reasonable-accommodation decision to a third-party administrator. While employers may consider medical reports produced during that proceeding and confer with their administrators, they should still independently analyze whether an employee can be accommodated under FEHA based on his or her actual medical restrictions.
An Employer Must Consider Whether an Injured Worker Is Qualified for Any Funded, Vacant Position, Even If the Position Was Created Pursuant to an Informal Policy
When the facts arose in Cuiellette, the LAPD had an informal practice of maintaining permanent, light duty positions for disabled officers. In fact, the City had briefly assigned the plaintiff to one of these fully funded, vacant positions before learning of his 100% total disability rating.
The court held that that the reasonable-accommodation analysis should focus on the fully funded, vacant, light duty positions. "Because the LAPD maintained permanent, light duty positions that it staffed with police officers who could not perform all of the essential duties of a police officer, the relevant inquiry is whether plaintiff was able to 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." 2011 WL 1522390 at *8.
Accordingly, Cuiellette's second lesson is that employers must consider their informal policies when determining whether an injured employer can be accommodated. To the extent an employer has an informal practice of maintaining permanent light duty positions for disabled employees, the employer must consider whether the employee can perform the duties of those positions, not just the duties of the employee's original position. Of course, the permanent, light duty positions must be funded and vacant. FEHA does not require an employer to create a position for a disabled employee or bump another employee.
Finally, the significant damage award in the case ($1.5 million) underscores the importance of a careful approach to a reasonable-accommodation question. A thorough analysis at the front end can eliminate otherwise significant liability following litigation.
For more information about this case or about other labor and employment matters, contact Art Hartinger or Mike Hughes at 800.464.3559.