California Labor &
Employment Law Blog

Apr. 25 2011

Failure to Provide Permanent Light Duty Found to be Disability Discrimination

Topics: Court Decisions, Discrimination, Harassment & Retaliation

Many employers offer light duty assignments to employees who are temporarily unable to perform the essential duties of their positions due to disability. Notably, however, there is no legal obligation for an employer to offer permanent light duty or to create a new position for an employee who becomes permanently disabled from returning to his or her normal position. In Cuiellette v. City of Los Angeles, a California court held that notwithstanding these rules, an employer discriminated against an employee on the basis of the employee's disability by failing to provide the employee with a permanent light duty assignment. The wrinkle in the case was that there was evidencethe employer actually had funded and available permanent light duty positions for the very purpose of accommodating employees (police officers) who became disabled from performing the duties of a police officer and that the employer routinely provided such assignments to disabled officers. The employer nonetheless argued that it had never provided a permanent light duty position to an officer who had a workers' compensation rating of 100% disability--the rating given to the officer in this case. The court dismissed the employer's argument, reasoning that a workers' compensation disability rating does not absolve the employer of the obligation to engage in the interactive process and determine whether the employee can perform the essential functions of an open alternative position. As such, the employer's decision to rely on the workers' compensation disability rating (and the advice of a third party workers' compensation administrator to terminate the employee) was the employer's downfall.

The Cuiellette decision is a good reminder for employers that workers' compensation obligations and disability accommodation obligations are not one and the same and do not always coincide. Employers determining whether they can accommodate disabled employees should always focus on the employee's actual restrictions in relation to the essential functions of the employee's existing position and/or open alternative positions. Furthermore, although there is no legal requirement to provide permanent light duty, if an employer has a practice of providing permanent light duty and/or treats it as a separately existing position, the employer may thereby obligate itself to provide permanent light duty assignments to employees who are rendered permanently disabled from performing their usual jobs.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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