California Employers Must Investigate the "Objective Reasonableness" of Medical Opinions Before Refusing To Hire An Employee
Under state and federal law, employers have an affirmative duty to provide "reasonable accommodation" for "disabled" workers. This obligation includes a requirement to engage in a good faith "interactive process," in which the parties discuss the employee's limitations and explore possible accommodations.
The recent California appellate decision of Gelfo v. Lockheed Martin Corp., addressed a common dilemma for employers -- what to do when an employee claims he is "100% healthy" but the written medical restrictions contained in his file tell a different story.
In Gelfo, the plaintiff had suffered a back injury and obtained workers compensation benefits based on medical reports stating that he was "permanently disabled" and restricted from "prolonged sitting or standing." Within a month of settling his workers compensation claim for a lump sum cash payment, however, the employee requested rehire on the ground that he was now totally recovered.
Lockheed-Martin denied Gelfo's request for re-hire because, relying on the medical reports contained in his file, it believed he was unable to do the job. Gelfo then sued Lockheed for discrimination under the FEHA.
The appellate court first decided that, since Gelfo had admitted he could work without any restrictions, he was not "actually disabled." But the Court went on to hold that any applicant who is denied a job based on medical restriction contained in his file is, by definition, "regarded as" disabled -- and this is also a protected class of employees under the FEHA. Thus, even though Gelfo was ultimately found to have had no medical impairment whatsoever, Lockheed was still legally required to engage in an "interactive process" and to give him a "reasonable accommodation," if necessary.
Unfortunately for employers, at that point the Appellate Court simply remanded the matter to the trial court without providing any concrete guidance about what an employer should do when an employee's subjective statements contradict his own medical restrictions. For example, the Court did not say whether Gelfo's alleged failure to provide an updated medical release to Lockheed would, if proven, be fatal to his case on remand. The Court was also silent about whether Gelfo should be barred from asserting facts in the lawsuit that were directly contrary to the facts he asserted in support of his workers' compensation claim.
Nevertheless, the Gelfo case illustrates that California employers would be wise to observe the following "do's and don'ts" whenever an employee's perceptions of his own abilities are at odds with his pre-existing medical restrictions.
*Do: Engage in an interactive discussion with the employee about his own perception of his capabilities and whether any reasonable accommodations would allow him to perform the essential job duties.
*Do: Request, in writing, an updated medical release reflecting the employee's current medical condition and restrictions.
*Do Not: Make a decision based on prior medical opinions without giving the employee a chance to explain his condition and obtain, if necessary, an updated medical opinion. As the Gelfo Court put it, "an employer cannot slavishly defer to a physician's opinion without first pausing to assess the objective reasonableness of the physician's conclusions."
*Do Not: Require the employee to certify, as a condition of reinstatement, that he can return to work without any physical restrictions whatsoever. As the Gelfo Court explained, "A policy requiring an employee be '100 percent healed' before returning to work is a per se violation [of the FEHA and ADA], because it permits an employer to avoid the required individualized assessment of the employee's ability."