In a recent decision by a California Court of Appeal, a Court held that it was not unreasonable for the City of Los Angeles to assign temporarily injured recruit officers to light-duty administrative assignments in light of the City’s past policy and practice of doing so.
Plaintiffs were recruit police officers and entered the Police Academy shortly after they were hired. During the Academy training, each of the three officers suffered injury. The City had a policy whereby if a recruit became injured while at the Academy, the City placed him or her in the Recycle program, which provided recruits with light-duty administrative jobs until their injuries were healed and they could return (or recycle back) to the Academy. While in the Recycle program, recruits received full compensation and benefits. In accordance with this policy, Plaintiffs were assigned to light-duty administrative positions.
The City’s Recycle program (of allowing police recruits to remain in the Recycle program indefinitely) conflicted with Penal Code section 832.4 and regulations issued by the California Commission on Peace Officer Standards and Training (POST), which require recruits to complete their training and the 12-month probationary period within two years. Thus, in an attempt to ensure compliance with this rule, the Department revised its Recruit Officer Recycle Policy to provide “any recruit officer with a work restriction(s) or any other condition that precludes them from fully participating in all aspects of the Basic Course, which has or will extend beyond six calendar months, is no longer eligible to remain in the POST Basic Course.”
When the City required the Plaintiffs to return or resign from their employment because they were not able to return after six months of injury, they filed this lawsuit alleging, in relevant part, disability discrimination and failure to accommodate under the Fair Employment and Housing Act (FEHA). As to their claim for disability discrimination, FEHA makes it unlawful for an employer to discriminate against an employee because of the employee’s disability. However, FEHA specifically limits the reach of FEHA by “excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties.” Here, the Court found that Plaintiffs were unable to show that they were “qualified individuals” because they could not perform the essential functions of a police recruit even with reasonable accommodation. The Court stated that in determining whether the Plaintiffs were “qualified individuals,” the City was not required to eliminate an essential function of the position of police recruit, such as modifying the Academy training program or requirement, waiving the POST certification requirement, or eliminating from a recruit officer’s job duties the ability to make forcible arrests and control suspect.
However, the Court rejected the City’s argument that the plaintiffs, as trainees, were not entitled to reassignment to the Recycle program as a reasonable accommodation as a matter of law and as such, the City was liable for failure to reasonably accommodate. The Court stated that FEHA protects “probationary” employees, including by requiring reassignment, where such reassignment is reasonable. The Court found that reassignment to the Recycle program, until the plaintiffs healed or became permanently disabled, was not unreasonable under the facts of this case, especially where the Department had a long-standing 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 the Court did not question the legitimate reasons the City had for discontinuing the Recycle program, it held that “having created the Recycle program and allow[ing] past recruit officers to stay in the program until they recovered or became permanently disabled, the City could not deny the same accommodation to the plaintiffs, who entered the program before the City’s change in policy.”
While FEHA does not require employers to temporarily accommodate injured employees indefinitely or to convert a temporary position into a permanent one, to the extent an employer's policies and practices indicate such accommodations are reasonable, an employer may violate FEHA by not making those accommodations available to all employees. Thus, in determining reasonable accommodation, employers should review their policies and past practices to make sure that they are consistent in their application (or discontinuation) of any light-duty assignments that they may make.