It is hornbook law that employers must “reasonably accommodate” disabled employees. But what happens when an employee can still work, but can’t perform all of the essential duties of his or her former job? Does the employer have to find a different position? What if the disabled worker is more senior to another employee who occupies the lesser position that could be filled by the disabled person? Can the disabled worker “bump” the junior employee?
These were among the issues resolved by the court of appeal in Cuiellette v. City of Los Angeles, a case that involved a disabled police officer who sought work at a “desk job.” The court’s opinion (which upheld an award for the employee) offers guidance for employers and employees alike. Here are pertinent excerpts from the court’s ruling (a complete copy of the opinion is attached for your convenience:
The FEHA imposes on employers the duty reasonably to accommodate their employees’ physical disabilities.…[The statute] provides that it is an unlawful employment practice for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.
Under the FEHA, ‘reasonable accommodation’ means ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’ If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available…A reassignment, however, is not required if ‘there is no vacant position for which the employee is qualified.’…Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies….The responsibility to reassign a disabled employee who cannot otherwise be accommodated does not require creating a new job, moving another employee, promoting the disabled employee or violating another employee’s rights . . . The employer is not required to create new positions or “bump” other employees to accommodate the disabled employee.) What is required is the “duty to reassign a disabled employee if an already funded, vacant position at the same level exists…[A]n employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees.
Under the FEHA . . . an employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would impose an ‘undue hardship’ on its operations or if there is no vacant position for which the employee is qualified….For purposes of an alleged failure reasonably to accommodate a disability, a plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position….An employer is not obligated, however, to make a temporary position available indefinitely once the employee’s temporary disability becomes permanent.
Disability cases such as this require careful analysis. Liability can be substantial and there are important societal values in play when a disabled employee seeks assistance, as when a conscientious employer attempts to work out reasonable accommodations so a qualified worker can stay productive....and on the job.
Our firm regularly advises employers, unions, and individual employees about issues such as this that arise in the workplace. Feel free to give us a call if you have questions or issues in this area.