A California Court of Appeal recently concluded employers are not required to make temporary light-duty positions permanent as an accommodation under California’s Fair Employment and Housing Act (“FEHA”). The court’s decision in Raine v. City of Burbank provides clarification on this important question, and highlights issues employers should consider in deciding whether and how to administer light-duty programs. Here’s the good news: light duty, handled appropriately, may provide benefits to both employers and employees.
The Difference Between “Light Duty” and “Reasonable Accommodation”
Light duty typically involves either: (1) excusing an employee from performing the essential functions (defined as the fundamental duties of the job) of his or her job, or (2) creating a new position, on a temporary basis, for the employee. Neither of these actions is required by the reasonable accommodation obligation imposed on employers by federal and state disability laws. Disability laws only require employers to remove the marginal functions of a position or to transfer an employee to an existing vacant position as reasonable accommodations. These distinctions are important, and are precisely what led the court in Raine to conclude employers are not required by the FEHA to make light-duty positions permanent.
An examination of the facts of the Raine case illustrates how these principles work in practice. Mark Raine, a sworn police officer for the City of Burbank, suffered an on-the-job injury to his knee. The injury interfered with Raine’s ability to run, jump, kneel and lift—activities he conceded were essential to his performance as a patrol officer. The City assigned Raine to a light-duty position working at the police department’s front desk while he recovered from his injury. The front-desk position traditionally had been reserved for injured police officers recovering from temporary ailments, or was performed by civilian technicians, who received less pay and benefits than sworn officers.
After Raine worked six years in the light-duty position, his physician concluded he would never physically be able to return to his patrol position. The City subsequently engaged in the interactive process with Raine, and concluded he could not perform the essential duties of the sworn officer patrol position. The City subsequently advised Raine he could no longer continue in the front desk position unless he agreed to be reclassified as a civilian technician. Raine declined because he would be required to forfeit his police officer retirement benefits if he continued to be employed by the City after accepting a disability retirement. After taking a disability retirement from his patrol position, Raine sued the City for failure to accommodate, contending the City should have kept him in the front desk position permanently while maintaining his status as a sworn officer.
The court concluded the City had no obligation to make the light-duty position permanent as a reasonable accommodation. The court agreed with the City that employers would be dissuaded from creating light-duty positions if they were required to maintain those positions indefinitely. In the court’s view, it was unreasonable to require the City to make the temporary position permanent, even though the City had a history of filling the position with temporarily injured officers. By demanding the City make the position permanently available to him as a sworn police officer, Raine was essentially asking the City to create a new job, something the FEHA does not require.
The court also rejected Raine’s assertion that his request constituted a reasonable accommodation as a “job restructuring.” The court noted Raine was asking to reclassify the front-desk position from a civilian position to a sworn officer position, “effectively, a new position that retains the benefits afforded to sworn officers but without the attendant essential functions of the sworn-officer position.”
In response to Raine’s argument the City could not show converting the temporary position to a permanent position imposed an undue hardship, the court reasoned that undue hardship did not factor into the analysis. A showing of undue hardship permits an employer to avoid providing reasonable accommodations. Converting the temporary position into a permanent position, according to the court, was not a reasonable accommodation. Therefore, the City was not required to demonstrate undue hardship.
What About Providing Vacant Light-Duty Positions to Employees Whose Disabilities Are Not Work-Related?
The concept of “light duty” was originally developed in the workers’ compensation setting to reduce workers’ compensation costs and liability by returning occupationally-injured employees to work. Notably, employers are not required by disability or workers’ compensation laws to create “light-duty” positions, although many workers’ compensation insurance carriers require such programs.
If an employer adopts a light-duty program for employees with work-related injuries, it may be required to offer light duty to employees whose disabilities are not work-related. The Equal Employment Opportunity Commission (“EEOC”) has taken the position that an employer who reserves dedicated light-duty positions for employees with occupational injuries is required to reassign an employee with a non-occupational disability to a vacant, reserved light-duty position as a reasonable accommodation. The employer cannot show that reassignment to the position is an undue hardship simply because the reassignment would reduce or eliminate the number of vacant, reserved light-duty positions available for occupationally-injured employees.
On the other hand, if an employer’s light-duty program only involves modifying an employee’s existing duties, and no specific and separate positions are reserved for work-related injuries, the employer is not required to extend temporary light-duty to a non-occupationally injured employee. The rationale for this distinction is that an employer has a duty to accommodate a disabled employee by moving the employee to a vacant position. If a reserved light-duty position is vacant, the disabled employee is entitled to that position as an accommodation.
Practical Tips for Employers
The Raine decision emphasizes the need for clear communication between employers and employees regarding temporary light-duty assignments. Employers should inform employees placed on light duty in writing that the assignment is temporary and specify a defined time when the light duty will end. For example, a policy could provide that light duty extends for only for a specified number of weeks or when the employee reaches maximum medical improvement, depending on the employer’s business needs.
If light duty involves the temporary removal of essential functions from the employee’s regular job instead of placing the employee in a different position, employers should document how the essential functions will be handled. Documenting how the reassigned duties will be performed makes it more likely the employee will not perform tasks which are incompatible with medical restrictions, and assist the employer in defending against any claims the employee was required to perform those tasks despite those restrictions.
When light duty ends, employers should continue to engage in the interactive process to determine if any reasonable accommodations exist, including those which may return the employee to his or her regular position or to a vacant position. Occupationally-injured employees whose light-duty period ends should not automatically be terminated or sent to vocational rehabilitation without an interactive process conversation. Changes to the employee’s condition or the organization’s workforce or business which occurred during the light-duty period may give rise to new opportunities or ideas for accommodation.
Employers should also carefully consider whether to extend light duty to employees whose conditions are not work-related and not expected to change. Light duty is intended to keep employees working while they recover, with the goal of returning them to their regular positions. Placing employees with permanent impairments on light duty may lead to disagreements about whether the modified duty involved the removal of essential or marginal functions.
Finally, employers should first consider whether modifying an employee’s existing job by removing non-essential functions is possible before reassigning an employee to a vacant light-duty position. Disability laws require an employer to attempt to accommodate an employee in his or her existing position first before considering reassignment or other accommodations.