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Employer’s Exclusive Reliance On Workers’ Compensation Calculations Can Add Up To Liability For Failing To Accommodate Disabled Employees

Posted in Disability Discrimination

When an employee is disabled by an industrial injury, an employer’s obligations under the Workers’ Compensation Act generally can be measured with what could be called arithmetic-like calculations.  However, gaging the extent of an employer’s obligations in such circumstances can begin to resemble calculus when disability-discrimination laws are figured in the equation. 

For example, upon learning that an injured employee has received a high disability rating, an employer’s quasi-mathematical equation might read:  “Work Requirements + 90 Days of Light Duty + High Disability Rating = No Obligation to Continue Light-Duty Accommodation or to Hold Position Open.”  However, that formula is not properly calibrated to ensure that an employer reaches the correct solution under anti-discrimination laws.

On the contrary, the duty to provide a reasonable accommodation under the California Fair Employment and Housing Act (“FEHA”) can operate as an algebraic-like variable.  When the FEHA or comparable laws are factored in to the equation, it may read:  “Work Requirements + 90 Days of Light-Duty Restrictions + High Disability Rating + Unquantified Ability to Accommodate = Risk in Discontinuing Light-Duty Accommodation or Declining to Hold Position Open.”  In a recent California lawsuit, the employer’s failure to add up all the right factors resulted in the courts awarding $1.5 million to an injured employee.

That case, Cuiellette v. City of Los Angeles, involved a police officer whose on-the-job injury resulted in a 100-percent disability rating by the California Department of Industrial Relations.  Thereafter, the injured employee sought reinstatement and gave his employer a doctor’s note releasing him to return to administrative work.  Based upon his doctor’s release, and following an established practice of providing disabled police officers with “permanent light duty” positions, the employer assigned the injured employee to a desk job.  At the time, the employer was unaware of the injured employee’s high disability rating.

The workers’ compensation adjuster who handled the employee’s claim later convinced the employer that it should not keep in the workplace an injured employee who was 100-percent disabled for purposes of workers’ compensation.  Thus, the employer ceased the injured officer’s light-duty arrangement and told him he could not continue to work there – even though he had performed the essential functions of his new permanent light-duty job with no problem.

Figuring things differently than the workers’ compensation adjuster, the California Court of Appeal concluded that even a 100-percent disability rating in the workers’ compensation system does not necessarily equal an inability to perform the essential functions of a job or an alternative job with a reasonable accommodation.  Expressed in another way, an injured worker’s 100-percent disability rating does not necessarily negate an employer’s duty to provide a reasonable accommodation; for example, short-term or long-term light duty or an alternative job in appropriate circumstances.

As this case makes clear, different calculations are called for when gaging the extent of a disability under the workers’ compensation system and when measuring an employer’s obligation to provide an accommodation under anti-discrimination laws.  Whereas the workers’ compensation analysis focuses on whether the employee is able to perform the usual and customary duties of the “job of injury,” the FEHA and comparable anti-discrimination laws take into consideration what the employee can do with regard to the original position or any position that may be available as an alternative.  Thus, it is very risky for employers to base a continuing-light-duty or reinstatement decision exclusively upon the permanent-disability rating assigned to an injured employee in the course of a workers’ compensation claim.

Some employers may be inclined to respond to this decision by avoiding or eliminating permanent or lengthy light-duty arrangements, or to set bright-line time limits for such arrangements.  However, such one-size-fits-all calculations may also run afoul of anti-discrimination laws.  Indeed, the Court of Appeal suggested that the result in the Cuiellette v. City of Los Angeles case may have been different if the employer had conducted some type of assessment of the injured employee’s job performance or his present or future ability to perform the tasks assigned to him in the light-duty position.

Employers who wish to reduce the risk of exposure to such claims may do so by engaging in the interactive process with injured workers to determine, on a case-by-case basis, what reasonable accommodations might be available to enable those employees to return to their original jobs or to continue working in appropriate alternative positions.  It is wise for such employers to collaborate with experienced human-resources professionals in such instances, and to consult legal counsel whenever a termination, bright-line rule, or one-size-fits-all policy is being contemplated.