Reasonable Accommodation for Absent Employee? Quirky Question # 154

Quirky Question #154

One of our manufacturing employees, call him Jim, was fairly seriously injured in an accident on the production floor. Jim applied for workers’ compensation and was examined by a doctor. The doctor let us know that in his opinion, Jim would no longer be able to perform his job, since it required a significant amount of lifting and bending that he was simply no longer physically capable of doing. Rather than taking immediate action based on the doctor’s opinion, we waited. We thought maybe his condition would improve – Jim was a good employee, and we just didn’t want to do anything too hasty.

Meanwhile, we knew Jim was aware of the doctor’s report that he could not return to his job, but he didn’t get in touch with us to contradict it or to tell us he did want to try to return to work if we could find a way to have him do it. Admittedly, we did not try to contact him either. The months passed, and he never did get in touch with us or communicate that he wanted to return. Finally, 8 months later, we decided it was time to terminate him, since he had shown no signs of wanting to come back to work, even if he could. We sent him a letter enclosing the doctor’s report and explaining that we were forced to terminate employment since he could not perform his job, and there was no other job available.

Now Jim is suing us. He claims we did not reasonably accommodate his disability, since we did not engage in an interactive process with him! Do we have any possible defense?

Dorsey’s Analysis

It appears you are already aware that as Jim’s employer, you do have a duty to reasonably accommodate his disability. Failure to do so constitutes disability discrimination under the Americans with Disabilities Act (ADA).

In general, an “accommodation” is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” The ADA gives some examples, like making the employer’s facilities readily accessible to disabled employees, restructuring the jobs of those individuals, modifying work schedules, or modifying equipment.

The tricky part is how to determine which accommodations it would be “reasonable” for you, as the employer, to make. In your case, it might initially sound like there was no reasonable accommodation that would have been possible, since the doctor’s report indicated that Jim simply was not capable of performing his manufacturing job functions any longer. But it can be dangerous to assume this. For instance, one common reasonable accommodation is to reassign a disabled employee to another vacant position within the company, so long as he is qualified for that job.

This is where what federal courts have dubbed the “interactive process” enters into the picture. The interactive process is the process by which the employer and the employee conduct an informal dialogue to determine the employee’s needs and how they may be reasonably accommodated. Put another way, it’s how the employer identifies a reasonable accommodation in a specific case. The Third Circuit has cautioned, “if an employer fails to engage in the interactive process, it may not discover a way in which the employee’s disability could have been reasonably accommodated.” Mengine v. Runyon, 114 F.3d 415, 420-21 (3d Cir. 1997).

In your case, it is true that you did not engage in this process with Jim, since you did not communicate with him at all regarding his disability or possible ways it might be accommodated. This was certainly not the safest possible course of action. However, particularly if you are a California employer, all may not yet be lost.

First of all, in California, the employee has the duty to initiate the interactive process under the California parallel to the ADA, the Fair Employment and Housing Act (FEHA). The California statute provides that the employer must engage in the interactive process “in response to a request” from the employee. Cal. Gov’t Code § 12940(n). The California Court of Appeals has remarked upon this, and has said that “it is the employee’s burden to initiate the process” by requesting an accommodation.

Federal law places some burden on the employee as well, to show that an accommodation is possible and is of a type that is reasonable. For instance, in the case where the accommodation sought was a re-assignment to a new job position, the employee would have the burden to show that a vacant position existed, that it was at or below the level of his former job, and that he was qualified to perform the essential duties of the new job. Shapiro v. Township of Lakewood, 292 F.3d 356, 360 (3d Cir. 2002). However, under federal law, the employer must engage in the interactive process once it becomes aware of the employee’s disability and the necessity to accommodate, which is on the face of it not as strong as requiring the employee to actually initiate the process.

To date, however, it has not been entirely clear in California what the employee must do to initiate the interactive process. The Shapiro Court expressly commented that “no magic words are necessary” to trigger the employer’s duties, and indeed, the “obligation arises once the employer becomes aware of the need to consider an accommodation.”

Thus, it had seemed until recently that the California burden on the employee to initiate the interactive process was extremely light, and in practice was not really any different from the federal requirement that an employer must engage in the interactive process after it becomes aware of the necessity to accommodate.

Now, a new California case has put some teeth into the requirement that the employee initiate the dialogue. In Milan v. City of Holtville, No. D054139 (July 15, 2010), Tanya Milan, an employee at a municipal water treatment plant, sustained a serious neck injury on the job. Similar to your situation with Jim, the employee requested workers’ compensation, and the workers’ compensation administrator advised her that the doctor did not think she would be able to return to her job. The city offered her rehabilitation and retraining benefits, which she accepted.

Meanwhile, Milan’s employer received notice of the doctor’s finding that she would not be able to return to work. As you did with Jim, they did not immediately terminate her, and instead waited to see whether her condition would improve. But in the months that followed, Milan never got in touch with her employer to say that she wanted to return to her job or to request an accommodation, and so finally they sent her a letter terminating her employment based on the doctor’s evaluation.

The trial court found that the employer never attempted to accommodate Milan’s disability because they never contacted her or engaged in an interactive process with her. But the California Court of Appeal disagreed. It found that the Milan had not complied with her duty to initiate the interactive process, because she was absent from work for more than 18 months following her injury, and yet made no attempt to communicate with employer that she desired to come back to work. Indeed, she accepted the rehabilitation and retraining benefits that were offered to her. Thus, the court found that she had not met her burden to initiate.

Here, your facts are not quite as strong, since you do not mention any rehabilitation or retraining benefits that Jim accepted. Nonetheless, you did wait a full 8 months from the time that Jim was injured, and he never got in touch with you or communicated a desire to return to work. Thus, if you are a California employer, you have a good argument under Milan that Jim did not initiate the interactive process with you, and thus cannot now sue you for failing to engage in that process with him.

So, to answer your question: there is at least one possible defense for your lawsuit with Jim, under new California law!

Dorsey & Whitney

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