$1.6M Lawsuits Highlights the Need to Understand Workplace Disability

A recent California Appellate decision is a stern reminder to employers of the need to accommodate disabled employees. In Cuiellete v. City of Los Angeles, a Los Angeles Police Department (LAPD) officer won almost $1.6 million when he was fired from his police officer light duty position after the agency learned his workers’ compensation disability rated him as 100 percent disabled. This type of rating is an administrative rating and should not be used to determine if an employee can, with or without reasonable accommodation, perform the essential job functions.

The LAPD retains 250 permanent “light duty” positions for officers injured in the line of duty or who may have other disabilities that prevent them from working their normal duties. Cuiellete worked five days in this capacity, but the LAPD fired him after they learned of his disability rating under the workers’ compensation claim.

In this case if and when the employer evaluated the need for a workplace accommodation, the question the employer should have explored is not whether the employee could perform the essential duties of his original job, but whether he could, with or without reasonable accommodation, perform the essential functions of the job he to which he was assigned. In this case, Cuillete’s attorneys argued that he could, and won big.

There were three prongs to Cuiellette’s claim: 1) that the agency fired him due to his 100 percent disability rating, 2) that the agency failed to accommodate him, and 3) that they failed to engage in the interactive process. (I covered this process in my recent column, hyperlinked .) Cuiellette filed his claim under the California Fair Employment and Housing Act (FEHA), which is California’s law that prohibits discrimination. The statute actually describes disability more broadly than does the federal Americans with Disabilities Act law. While the ADA states a disability must “substantially limit” a major life activity, FEHA only uses the word “limit.”

Here is the key for small businesses – you must engage in the interactive process if employees have a disability that inhibits their ability to do their jobs. The employee may not wave a red flag and yell, “Hey, over here! I’m disabled.” He or she may simply ask for accommodations which can trigger the need to engage in the interactive process. Here are some issues that could trigger the need to begin the interactive process.

• An employee returns from a major surgery or medical condition, such as cancer.
• Your employee suffers a serious injury, such as a back fusion or rotator cuff repair.
• An employee suffers from periodic depression and is trying to manage his or her condition with medications, which may cause sleep disruption and mood swings.
• The employee undergoes a period of rehabilitation for substance abuse.
• An employee undergoes a traumatic event that results in post-traumatic stress disorder.
• Your employee has a chronic medical condition, such as fibromyalgia.

How should the small business owner approach these issues? First, don’t try to handle these potentially difficult issues without some professional guidance. Should you call your labor attorney? Perhaps, but human resource consultants can probably help more effectively and it will cost less than engaging counsel. The Job Accommodation Network (JAN) also offers a range of free consulting services to business owners. Their website, https://askjan.org/,

offers employees a wealth of information. JAN should be your first call if you have employees who you suspect need accommodations.

Over half of workplace accommodations cost nothing, according to JAN, and many accommodations actually increase productivity.

As our population engages and more employees face chronic health conditions such as diabetes and hypertension, the need to accommodate workers will grow. Managing disability in the workplace is simply one more key tool in a small business owner’s toolbox.