Important lessons regarding reasonable accommodations

Many employers offer light duty programs to temporarily disabled employees. A recent California Court of Appeal case, Atkins v. City of Los Angeles, 2017 DJDAR 2312 (Feb. 14, 2017), provides important lessons regarding employers' reasonable accommodations duties under the California Fair Employment and Housing Act for light duty programs.

Resign or Be Discharged

Five recruit officers of the Los Angeles Police Department suffered temporary injuries while training at the police academy. Because city doctors would not provide the recruits with medical clearance to continue training, the city placed the recruits in a "recycle" program and gave them administrative desk jobs while they recuperated.

Historically, the LAPD had allowed recruits 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 and limited participation in the recycle program to six months.

The department applied the new six-month rule to the recruits and told them they either could resign or be discharged unless doctors gave them immediate medical clearance to return to the academy. Those who resigned could return to the academy when they had recuperated fully.

None of the recruits could obtain the necessary clearance, and none of them resigned. The department discharged or allegedly constructively discharged all of them.

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. The jury awarded the plaintiffs over $12 million in damages.

Court of Appeal

On appeal, the court overturned the jury's verdict that the city discriminated against the recruits. The court explained that FEHA excludes from coverage individuals who cannot perform the essential job duties of the position held, even with accommodation.

Because a police recruit's essential functions 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 could not meet their burden of proof for disability discrimination.

Although the court overturned the jury's disability discrimination verdict, it sustained the jury's verdict that the city failed to reasonably accommodate the recruits.

Summarizing an employer's FEHA reassignment obligations, the court explained that an employer must offer a disabled employee who requests reassignment comparable or lower-graded vacant positions for which he or she is qualified if such positions exist. The court also explained that FEHA does not require reassignment if there is no vacant position the employee is qualified to fill or the employer either promotes the employee or create a new position for him.

The court further determined that an employer's duty to offer reassignment extends to "probationary" or "preprobationary" employees, including the police recruits involved in this case, if the probationary employees are qualified to fill the vacant position.

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 the city's argument. While the court agreed that while an employer generally need not make a disabled employee's temporary assignment permanent or create a new position, the employer may have such a duty if it regularly offers such assistance to disabled employees.

Such was the city's mistake, according to the court. The city violated FEHA because it denied the plaintiff's ongoing participation in the light duty recycle program, as it had done for others. While the department did not need to accommodate recruits injured after the department imposed the six-month limitation by allowing them to remain in the program indefinitely, it could not change the rules for recruits already in the program before the policy change. The department had to treat those recruits the same as it had treated others previously by allowing them to remain in the recycle program until they were medically cleared to return to the academy or until their disabilities were deemed permanent.

In other words, the department should have "grandfathered in" the recruits already in the program.

In a separate section, 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. Here are some practical considerations regarding handling temporarily disabled employees:

Takeaways

Consider reassignment or transfers. This case reminds employers that when a disabled employee cannot perform the essential functions of his or her job, the company must consider reassigning the employee to an open position for which the employee is qualified.

Light duty or not? Although employers are not obligated to offer light duty to injured employees, many good reasons exist for doing so. The Atkins case highlights the importance of a well-designed, carefully articulated light duty program. When designing such a program, employers should consider who may be eligible, the types of temporary duties, and the duration of participation, among other factors.

Precedent matters. In this case, one reason the court found that the city 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 that requires the employer to extend the same benefit to subsequently disabled employees.

Change programs with care. The Atkins court made clear that the city could change its light duty program's duration or eliminate the program entirely. However, before changing the rules, employers should carefully consider how the change may affect current program participants. 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.