Voc Rehab Case Law Update

Saturday, February 25, 2006 | 0

by Alan Leno

Does the provision of a temporary work assignment create an obligation for the employer under the Fair Employment & Housing Act (FEHA) to make the assignment permanent when the temporary disability becomes permanent?

In Raine v. City of Burbank (No. B180615, 1/25/06), the California court of appeal (2nd district said "No." The City of Burbank accommodated a police officer by assigning him to a light duty position at the front desk while he recovered from a knee injury. At P&S, the officer was not able to meet all the physical requirements for a police officer at full duty status. He sued under the FEHA, arguing that the City was obligated to make his temporary assignment permanent once it was determined that he needed a permanent accommodation. The 2nd DCA determined that assignment to a light duty or transitional work assignment did not obligate an employer to make that assignment permanent. In this case, the employee wanted the front desk position to be made permanent while retaining his status as a police officer. After engaging in the "interactive process" required by FEHA, the city determined that there were no positions as a police officer for which the employee qualified with his limitations. It could assign him permanently to the front desk position by changing his status from police officer to police technician, a move the employee found unacceptable. The 2nd DCA determined that the employer acted appropriately.

An employer can safely implement temporary light duty and transitional work assignment programs as long as it observes all of the requirements of the FEHA reasonable accommodation process, as did the city I the case above. Employers who ignore FEHA requirements do so at their own peril.

Does settlement of an employee's workers' compensation case mark the end of the employment relationship?

A compromise and release agreement does not resolve all employment issues. In Albertson's Inc. vs. Fair Employment and Housing Commission (FEHC), et. al., B175816 (1/20/06), the employer settled her case for $48,000. The C&R included language that specified the document applied to "...all unknown and unanticipated injuries and damages from such accident...." The employee made several attempts to return to work but was advised that she could not due to the terms of her settlement. The employee argued that she could perform almost all aspects of her job with a need for only infrequent assistance with some heavier aspects. The employer continued to refuse to re-employ her. A DFEH Administrative Law Judge found that the employer had unlawfully discriminated against the based on her disability, a determination upheld by the 2nd DCA on appeal. The DCA noted that the employer had complied with its obligations under workers' comp law but failed to comply with concurrent obligations under the FEHA.

The message for employers is clear - failure to engage in the interactive process and reasonable accommodation evaluations required by the FEHA may prove to be an expensive additional cost. In this case, the employer was order to: (1) pay the employee back-pay and emotional distress damages, (2) reinstate the employee, (3) provide antidiscrimination training, and (4) post compliance notices. It is likely that these damages exceeded the value of the C&R and perhaps all workers' comp costs on this case. You can review this decision here.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.

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