100% Disabled Doesn’t Always Mean 100% Unemployable
Logic would tell you that when a person has a 100% disability they cannot perform the usual and customary duties of their job. However, when it comes to disability management under the Fair Employment and Housing Act (FEHA) the level of disability doesn’t end the inquiry. Unfortunately for the City of Los Angeles and their Third Party Administrator (TPA) the decision to simply rely on a finding that the employee had a 100% disability and not consider alternative employment opportunities resulted in a verdict of $1,571,500 for the disabled employee. In finding for the plaintiff, the Court of Appeals observed that the workers compensation system and FEHA require separate inquiries and the reliance upon a 100% disabled finding before the WCAB does not absolve the employer of its duty to reasonably accommodate or engage in the interactive process with the disabled employee.
Rory Cullliette was a peace officer for the City of Los Angeles working as an Investigator in the Fugitive Warrants Unit. In that capacity he handled warrants as well as performing police duties associated with those warrants. His work performance in that department earned him praise from his superiors.
After he suffered an industrial injury in 2003 he could no longer perform the rigorous functions of his former work position such as making arrests, taking suspects into custody and operating vehicles in emergency situations. Since the Los Angeles Police Department had an informal policy of permanently placing safety officers in positions which did not require them to perform the more stressful duties of a safety officer, he requested to be placed back into his former Fugitive Warrants Unit. After five days in the new position he was sent home by his supervisor on the advice of the City’s TPA. The position of the TPA was that the City of Los Angeles could not place a person in the work place who was 100% disabled. There was strong evidence that the City of Los Angeles deferred to the TPA’s expertise in this area.
The Court of Appeals discussed an employer’s obligation under the disability discrimination provisions of FEHA to interact with employees on return to work decisions and to reasonably accommodate those employees with known physical or mental disabilities. The Court defined “reasonable accommodation” to mean “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” While this does not mean that the employer needs to create a new position or bump a senior employee from a currently held position, it does require the employer to reassign a disabled employee if there exists an open and existing position for which the employee is qualified and can perform the essential functions, with or without reasonable accommodation.
The testimony at trial established that the City of Los Angeles has 8,500 sworn officers of which 3,000 worked with medical restrictions. Of those with medical restrictions some 250 sworn officers were in permanent light duty positions. While the Los Angeles Police Department suggested that every officer had to have the ability at any time to make forcible arrests, its informal policy of putting officers in permanent light duty positions undermined its stated position.
The Court found that the LAPD discriminated against Officer Culliette because he was qualified to perform the essential duties of the position and did so for five days. The decision to remove him from that position was based entirely on the fact he was deemed 100% disabled in the workers compensation system. The decision was based not on his ability to do the job but on a label placed upon him by the workers compensation system. The LAPD failed to reasonably accommodate Culliette under the then de facto policy of placing peace officers in permanent light duty positions.
The TPA in this case made a recommendation that ignored the duty of an employer to interact on return to work issues and accommodate restrictions where possible. While the case provides numerous lessons for employers, the message for those handling claims is also apparent. Whether the rating is 1% or 100% the duty imposed by the Americans with Disabilities Act and the Fair Employment and Housing Act must be observed and strictly applied. Just relying on a Permanent Disability rating will not fulfill those obligations to disabled employees.
The case does not deal with the fallout from the decision to remove Officer Culliette from the job. It is possible that the advice given by the TPA will be the subject of further action by the LAPD in light of the $1,571,500 verdict. The Court of Appeals decision certainly placed most of the blame for the decision on the TPA’s advice.
The case is Culliette v. City of Los Angeles, (2011) 194 Cal App 4th 757.