An FEHA Example Makes Rehab Look Cheap

Saturday, November 5, 2005 | 0

By Alan Leno

I have noted in the past that employers need to engage in the interactive process and evaluate options for reasonable accommodations when an employee with a disability is ready and willing to return to work, including cases where there may be no ratable disability. Employers who fail to do so are at great economic risk as in Green v. State of California (Super.Ct.No. RCV 60816).

The plaintiff in this case worked as a stationary engineer for a State of California correctional facility. He was under long term care and treatment for non-industrial Hepatitis C and two back injuries which were work related.

A stationary engineer is responsible for the maintenance of boilers, air conditioners, and refrigerators. The job description for the position indicates that it is heavy work but it is common practice to use inmates to assist with the heavier activities.

The Interferon treatments for Green's Hepatitis caused fatigue and the plaintiff's physician asked that he be placed on light duty; the employer accommodated this need.

In 1999, Green injured his back and had a restriction to light duty but later went on disability leave because the light duty assignment was limited to 120 days. He was later released to full duty by the physician treating his back injury but he continued to need a light duty assignment at the time because he was once again receiving Interferon treatments.

At this point, the employer determined that Green did not meet the qualifications for his job and commenced the process for a disability retirement.

Green filed a complaint with the Dept. of Fair Employment and Housing.

After trial, Green was awarded $597,000 in compensatory damages and $2 million in punitive damages (later reduced to $1.8 million). These damages resulted because (1) the employer did not discuss Green's ability to perform his job with him but, instead, made a unilateral decision about his ability to perform his job, and (2) there was no attempt to evaluate the availability and effectiveness of job accommodations (i.e., reasonable accommodations). Testimony at trial revealed that he had been able to effectively work around his limitations for a number of years.

The lesson here for employers is that they need to understand FEHA requirements and implement procedures to facilitate the interactive process and reasonable accommodation.

They should also be working closely with their insurers to facilitate a return to work for injured employees. While the insurer's RTW program does not, by itself, protect an employer from FEHA liability, an affirmative RTW program is a step in the right direction.

The alternative is an exposure that makes the cost of a vocational rehabilitation plan look like pocket change.

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

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