Light Duty Assignments And The Disabled Employee
Morin I. Jacob
, July 22, 2011
Law360, New York
(July 22, 2011) -- Determining when an employee is entitled to a light duty assignment as an accommodation is a challenging issue for many employers. Employers should not solely rely on disability determinations made in workers' compensation matters to decide whether to return employees back to work or to decide whether they are able to take on a light duty assignment. And employers who have a policy or practice of creating new, light duty positions for injured workers may be obligated to do so for future injured workers as well.
Cuiellette v. City of Los Angeles
, the Second Appellate District Court affirmed a $1,571,500 judgment in favor of the peace officer plaintiff for disability discrimination and failure to accommodate. Rory Cuiellette was employed by the Los Angeles Police Department as a police officer in the field. Cuiellette was injured on the job and placed on disability leave. Cuiellette filed a workers' compensation claim and was deemed to be 100-percent disabled by the Department of Industrial Relations.
Thereafter, Cuiellette provided the city with a doctor's note authorizing him to perform "permanent light duty — administrative work." LAPD, like other police departments, had an established practice of offering "permanent light duty positions" to disabled peace officers. In response to the doctor's note, the city accepted Cuiellette's return to work note and assigned him to a court desk position, a purely administrative assignment requiring no field work.
This assignment was similar to other "permanent light duty" positions to which other disabled officers had been assigned in the past. However, just five days later, Cuiellette's supervisor released him from his position because of the 100-percent disabled rating issued by the Department of Industrial Relations.
Based on the evidence presented by the parties at trial, the Court of Appeal held that LAPD's removal of Cuiellette from the light duty position constituted disability discrimination. Cuiellette presented evidence that the city had a long-standing policy and practice of allowing disabled peace officers to perform light duty assignments that did not require the ability to perform all of the essential functions of a peace officer, and that he was able to perform the essential functions of the court desk position, that only sworn peace officers could hold, without accommodation.
Further, the evidence at trial showed that the city made the decision to remove Cuiellette from duty based on the concern of a third-party workers' compensation claims administrator, Cambridge Associates, that the city could not place someone in the workplace who was 100-percent disabled. Accordingly, the city never engaged in the analysis required under the Fair Employment and Housing Act.
The city presented evidence and unsuccessfully argued two points. First, the city argued that the "100-percent disabled" rating meant that the employee was incapable of performing any departmental job. And, second, the city argued that a 100-percent disability rating meant that it was not possible to accommodate the employee since he was deemed "100-percent disabled."
Cuiellette, however, was able to show that the decision to release him from his position was not based on an assessment by the city or LAPD of his present or future ability to perform the essential functions of his job. Instead, the evidence showed that the decision to release Cuiellette from the light duty position was predicated on the disability raters conclusion that a 100-percent disability rating was inconsistent with continued, active employment with the LAPD.
The Fair Employment and Housing Act puts the onus on the employer, not the workers' compensation administrator, to independently make this determination. Moreover, such a determination cannot be made absent the employer engaging in the interactive process with the employee.
In affirming the judgment, the Court of Appeal explored whether reliance upon a workers compensation disability rating to conclude that an employee cannot continue in a position is sufficient for purposes of disability analysis under the Fair Employment and Housing Act. The court stated that the proper question to ask is whether an employee's medical restrictions prevent the employee from performing the essential functions of a job.
This inquiry is not necessarily the focus of the analysis that takes place in the workers' compensation world. However, it is key for purposes of the Fair Employment and Housing Act. The city was found not to have engaged in this analysis, but rather, simply to have relied on the disability rating assigned during Cuiellette's workers' compensation matter to conclude that he could not be accommodated and could not stay in his light duty position.
Further, the Court of Appeal explored whether light duty assignments may be required to be offered as an accommodation by an employer. Although courts have typically held that employers are not obligated to make a temporary assignment permanent where an employee requests reasonable accommodation because of a disability, this notion was put to the test in
Generally, employers are not expected to create, as a form of accommodation, new positions that did not previously exist. That is not as clear now in light of Cuiellette decision. In making a finding of discrimination, the court honed in on the fact that the LAPD had a long-standing practice of assigning disabled officers to permanent light duty positions in situations where they were no longer capable of performing the full, essential functions of a police officer position.
The court also distinguished the facts of this case from those in
Raine v. City of Burbank
, which held that there is no obligation to provide employees permanent light duty assignments as an accommodation. In Raine, Burbank had a light duty policy for officers who were temporarily disabled but not those permanently disabled as in the LAPD's case. As such, the Raine court held there was no obligation to make a temporary assignment permanent.
In addition, unlike
, LAPD had a significant number of permanent, light duty positions in which it placed disabled peace officers who could no longer perform the full essential duties of the job. It is noteworthy that the LAPD, compared to Burbank's police department, is a much larger agency.
The court ruled that, because LAPD had a permanent and available light duty position for Cuiellette, the relevant question was whether he could perform the essential functions of the light duty position, not whether he could perform the full essential functions of what had been his regular position as a full duty police officer.
This was a large focus of the court's inquiry because an employee who is being accommodated must meet the minimum qualifications for, and be able to perform, the essential functions of the position being offered as a reasonable accommodation.
case is instructive to employers in two ways. First, it makes clear that an employer's obligation to engage in the interactive process to determine whether reasonable accommodations exist for an employee is not obviated where an employee is given a "100-percent disabled" rating as part of a workers' compensation case.
Although such a finding can be one factor considered by the employer, the employer remains obligated to engage in the interactive process to determine whether there are reasonable accommodations to aid an employee in performing the essential functions of a job.
is instructive to show that where an employer has a policy or practice of offering light duty assignments, and does not intend to have light duty positions be deemed permanent, the employer should clarify that light duty positions are only for temporary work restrictions, and ensure that disabled employees are not permanently assigned to such light duty positions.
--By Morin I. Jacob, Liebert Cassidy Whitmore
Morin I. Jacob
is of counsel in the San Francisco office of Liebert Cassidy Whitmore. The firm represents public entities in labor and employment law matters and educational institutions as general and special counsel.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media, publisher of Law360. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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Reproduced with permission from Law360.
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