Monday, May 23, 2011

The Impact of a WC Disability Rating on an Employer’s FEHA Obligations

The recent California appellate court decision, Cuiellette v. City of Los Angeles, No. B224303 (Cal. Ct. App. Apr. 22, 2011) is an important case for employers because it highlights the fact that a workers’ compensation permanent disability rating (even one as high as 100%) does not mean that an employee cannot work in terms of an employer’s obligations under the Fair Employment and Housing Act (FEHA)/Americans with Disabilities Act (ADA). Significantly, under the workers' compensation system, the focus is on whether the employee can perform the usual and customary duties of the "job of injury." However, pursuant to the FEHA and ADA, the focus is on what the employee can do in terms of their original job, or any other vacant, alternative position. In essence, workers’ compensation looks at what the employee can no longer do while FEHA/ADA analyze what the employee can still do. Therefore, employers must exercise caution when considering return to work requests from injured workers, and avoid summarily denying the request based upon the disability alleged in the workers’ compensation case. For example, some employers believe that if an employee claims a substantial injury in the workers’ compensation case (which occurred in the Cuiellette case), and subsequently receives a high disability rating, the employer is justified in refusing reinstatement, particularly if the employee has a 100% disability rating. However, the court in the Cuiellette case delivered a strong message to employers that the standard for a permanent disability rating in workers’ compensation is different than the FEHA/ADA standard for determining whether a disabled employee is able to perform the essential functions of the job, with or without an accommodation. Therefore, best practices (and the lawful course) is for employers to conduct an interactive process with an employee who is requesting to return to work as opposed to denying that request solely based on the workers’ compensation disability rating. The following is an analysis of the Cuiellette decision.

Officer Rory Cuiellette worked for the City of Los Angeles (the City) as a field officer for several years, until he sustained an industrial injury for which he filed a workers’ compensation claim. Ultimately, he was found to be 100% disabled pursuant to the workers’ compensation rating system, and his workers’ compensation case was subsequently resolved.

Cuiellette then requested to return to work with the fugitive warrants unit and he provided a note from his treating physician (as requested by the detective in charge of the unit) which authorized Cuiellette to perform “permanent light duty – administrative work only.” In May 2003, the City accepted Cuiellette’s request and returned him to work at a desk job for the fugitive warrants unit, which is one of the City’s light duty jobs for injured field officers who want to continue working.

The City had a longstanding policy and practice of allowing field officers to perform light duty assignments which did not require them to do many of the essential job functions of a field officer. According to the officer in charge of the Medical Liaison Unit, he had placed hundreds of officers in light duty assignments during his 12 years in that position, and his orders were to accommodate disabled officers by placing them in assignments that did not required arrests, field work or dangerous driving. Another officer had reassigned at least 25 diabled officers to the fugitive warrants unit.

However, after five days of working in the new position, the City realized, with input from the workers’ compensation third party administrator, that Cuiellette had received a 100% disability rating in the workers’ compensation case, and on that basis Cuiellette’s supervisor advised him that he could not work and he was sent home. There was no evidence suggesting that Cuiellette could not perform the essential functions of the light duty position and in fact at trial there was evidence presented to the contrary, specifically that Cuiellette was able to perform the desk job duties.

Procedural History

This case involved multiple appeals on different issues. The most significant issue centered on whether a finding of 100% disability in a workers’ compensation claim precludes an employee from pursuing a claim under the Fair Employment and Housing Act (FEHA) for disability discrimination. The court determined that a “rating received in the workers’ compensation proceeding was not, as a matter of law, a legitimate, nondiscriminatory reason for an employer’s adverse employment action.” [Emphasis added] As discussed above, this means that even if an employee has a 100% disability rating in a workers’ compensation case, the employer must still engage in the Interactive Process if the employee requests to return to work, to review whether the employee can still perform the essential functions of their job, with or without a reasonable accommodation, in addition to reviewing whether there are any other jobs that the employee might be able to perform, if the employee is unable to perform the essential functions of his or her prior position. The court essentially found that the rating in a workers’ compensation case does not provide an employer with a way around an employee’s rights under the FEHA.

Court Analysis

In this case, the court considered which essential functions Cuiellette was required to prove that he could perform, with or without a reasonable accommodation, in order for the City to be liable for disability discrimination and/or a failure to accommodate. The City argued that even if Cuiellette could work the light duty desk job, he still had to prove that he could perform the essential functions of a peace officer (his former position) because the light duty position was never meant to be permanent. However, the court was not persuaded by the City’s argument that the light duty position was temporary. Instead, the court focused on evidence suggesting that the City’s long standing practice was to make light duty positions available to disabled peace officers as permanent assignments.

The court also reviewed whether Cuiellette had to prove that he was able to perform the essential functions of the light duty position or his former position. On this point, the court ultimately determined that in order to prove a failure to reasonably accommodate a disability, the plaintiff must prove that he or she can perform the essential functions of the position to which the employee has been reassigned, if that has occurred, rather than the essential functions of the employee’s prior position. The court also observed that in this case the evidence indicated that it was not the policy and practice of the City to require sworn peace officers who had been reassigned to light duty positions to be able to perform the essential functions of their prior positions. On this point, one of the City’s own officers testified that “his marching orders” were to reasonably accommodate any disabled officer by essentially eliminating the more strenuous essential functions of the job. Based upon this, the court found that Cuiellette only needed to prove that he was capable of performing the essential functions of the light duty job to which he had been reassigned. The court then found sufficient evidence to establish that Cuiellette could perform the essential functions of the light duty desk position, and concluded that he had done so without a problem for five days before being terminated.

What Does the Cuiellette Case Mean for Employers?
Employers must understand that when they have an employee who is injured on the job, the workers’ compensation laws are not the only laws that they must follow. Significantly, workers’ compensation laws do not eliminate or supersede other California and federal laws involving disabled employees. Thus, it is important for employers to understand that industrially injured employees, no matter how their workers’ compensation claim is resolved, have additional rights under the FEHA and under certain federal laws, such as the ADA. Moreover, these laws run concurrently with workers’ compensation laws. Therefore, when responding to a disabled employee’s request for reinstatement, including those employee’s injured while at work, the employer must engage in an interactive process to determine if the employee can perform the essential functions of his or her “current” position, and if not, to consider whether there are available alternative vacant positions, and whether the employee can perform the essential functions of such positions.

Employers must also exercise caution in creating and implementing light duty positions, if it is the employer’s policy to offer such jobs. In this case, the court was not convinced by the employer’s argument that the City intended the light duty position to be temporary. Instead, the court looked at the employer’s past practices regarding the light duty positions and concluded that the City had treated the positions as permanent. Thus, if employees are allowed to remain in light duty positions for extended periods of time, but the employer intends that these positions are only temporary in nature, employers must recognize that a court might conclude that such positions have become permanent based on the employer’s practices. However, because it can be beneficial in some cases to have temporary light duty positions available, employers may want to consider: (1) advising employees in writing that the light duty positions are temporary; (2) setting time limits for the light duty positions; and, (3) setting limits on the number of light duty positions available depending on the business needs of the employer.

What probably happened in this case is that when the City discovered Cuiellette had a 100% disability rating in the workers’ compensation case, the City believed the rating meant that Cuiellette could not perform any job duties, particularly since the employee had recently claimed a significant injury as part of the workers’ compensation case. However, the court held that the City’s failure to return the employee to work constituted a FEHA violation because FEHA requires that the employer conduct an interactive process to examine whether the employee can perform the essential functions of his or her job and if not to look at whether there is an available accommodation that the employer can offer. Further, as this case demonstrates, employers must also consider alternative vacant positions or light duty assignments if available, and if appropriate, consider whether a reasonable accommodation would enable the employee to perform the essential functions of the alternative or light duty position. The 100% permanent disability rating in the workers’ compensation case should not have been a factor in the FEHA analysis. Moreover, for employers who face the possibility of a disability discrimination lawsuit, the potential for a $1.5 million dollar judgment for failure to comply with FEHA does not even take into account defense costs and the immense time spent by employers in defending such matters. Best practices in these situations is for employers to conduct a thorough interactive process with the employee to determine the best course of action when considering reinstatement. And, of course to document that effort.

BOBrien and DSkeren

Copyright 2011: FSK Publishing all Rights Reserved DISCLAIMER: The information contained in this document is for general information purposes only and should not be construed to be formal legal advice nor should it be construed to create a lawyer/client relationship between the authors of any information on the document and any individual who chooses to use this document. Anyone using this document should seek independent counsel for any desired legal advice to ensure that the form is appropriate for their business purposes.

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