By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 8: The Duty to Accommodate and Accommodate a Disability with Light Duty
This article is the 8th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the next two to three months, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 8th article in these newsletter series provides an overview and introduction to the rights of accommodation under disability laws. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
First, the federal laws, at least, do not protect individuals with temporary medical conditions. The right to “light duty” under these circumstances is left to the parties’ collective bargaining arrangement (or their established “past practices”). PERC has ruled in City of Wenatchee that light duty is a mandatory subject of bargaining and that an employer may not unilaterally abandon a light duty program.[1] (This is another example of the important ways in which collective bargaining rights relate to disability rights.)
The federal cases have been, for the most part, fairly clear that there is no obligation to create a permanent light duty program. The basic rule concerning “light duty” accommodation, is stated by the EEOC:
The ADA does not require an employer to create a “light duty” position unless the “heavy duty” tasks an injured worker can no longer perform are marginal job functions which may be reallocated to co-workers as part of the reasonable accommodation of job-restructuring. In most cases, however, “light duty” positions involve a totally different job from the job that a worker performed before the injury. Creating such positions by job restructuring is not required by the ADA. However, if an employer already has a vacant light duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position. If the position was created as a temporary job, a reassignment to that position need only be for a temporary period.[2]
In the Ninth Circuit, as in other federal circuits, the “reasonableness” of an accommodation will depend on particular circumstances of each case.[3] But here are the general principles that federal courts have applied:
- The ADA might require employers to reassign a disabled employee to a different position as a reasonable accommodation when the employee can no longer perform the essential functions of his or her current position;[4]
- On the other hand, employers are not required to transform temporary light duty jobs into permanent jobs in order to accommodate a disability;[5]
- Employers are not required to create new jobs;[6]
- Employers are not bound by earlier “good faith” accommodations of disabled employees;[7] but employers probably will be bound where such accommodations are part of an existing policy;[8]
- Employers are not obligated to provide an employee the singular accommodation he or she requests or prefers;[9]
- Employers are not required to ‘bump’ other employees to create a vacancy just to be able to reassign the disabled employee;[10]
- Employers certainly do not have to accommodate a disabled employee by promoting him or her to a higher level;[11]
- Employers do not have to make an accommodation that would be inconsistent with an existing CBA or contravene the seniority rights of other employees;[12]
- Reasonable accommodation does not require employers to eliminate or reassign “essential” job functions;[13]
- Employers do not have to alter fundamentally the nature of a job.[14]
Although the federal courts do not appear willing to require an employer to transform a temporary light duty accommodation into a permanent position, some have not entirely ruled out the possibility. The Third Circuit has stated that even though an employer is not required to create new jobs or transform its temporary light duty jobs into permanent jobs to accommodate a disability, the court is:
[R]eluctant to adopt a per se rule that the conversion of a temporary job to a permanent job can never constitute a “reasonable accommodation”. . . . We think that in most cases the imposition of such a requirement will be unreasonable, but there might arise the rare case in which the cost of converting the temporary job into a permanent job is slight and the benefits considerable.[15]
There also has been some litigation about how to assess the employer accommodation obligation once an employee has been transferred into a “temporary” light duty position. The primary cases are Taylor v. Garnett,[16] a case arising under the Federal Rehabilitation Act, and Valdez v. Albuquerque Public Schools,[17] an ADA case.
In both Taylor and Valdez, the employees had been accommodated by their employers and transferred to light duty, but eventually both were discharged. The main issue in both cases was how to identify which positions the plaintiffs’ abilities should be measured against — their original positions or the “temporary” light duty positions that they occupied at the time of their discharge. And in both cases (Valdez citing Taylor), the courts found that the employers had essentially moved the disabled employees into permanent positions and ruled that, for the purposes of the claims, their abilities should be measured against the light duty positions they held when discharged.
Discussion of these two case has focused on the permanent/temporary nature of the disabled employees’ light duty jobs. In Malabarba v. Chicago Tribune Co.,[18] the plaintiff cited Taylor and Valdez for the proposition that an employee alleging an ADA violation need only be qualified to perform the essential functions of the light duty position to which he was reassigned in order to meet the “qualified individual with a disability” requirement.
The Seventh Circuit, however, distinguished the lower court cases by characterizing them as involving permanent light duty reassignments, as opposed to a temporary position. In fact, the Taylor court appears to acknowledge the relevance of a permanent/temporary distinction so the Seventh Circuit characterization may be correct.[19] According to the Taylor court, it recognized that the employer could legitimately claim that it had placed the employee into temporary light duty with the belief that the employee would only be temporarily injured and that once the disabilities proved permanent, they reserved the right to discharge the employee because the employee could no longer perform the essential functions of his original position.
At least one local federal district court, in a case involving the King County Jail, has commented on the Taylor/Valdez controversy. In Kees v. Wallenstein,[20] fired corrections officers claimed they had been permanently accommodated by the employer. Once again the question was about which position their abilities should be measured against: (1) their original position (corrections officer); or (2) their position upon temporary accommodation (reassignment to the control room). The district court ruled against the officers and distinguished Taylor/Valdez on the basis that the accommodations made for the corrections officers were temporary, not permanent.[21]
In Wallenstein, the employees tried to prove permanency, despite the fact that the employer had a written policy stating that the light duty assignments were temporary. They did this by introducing other evidence showing that the accommodations were permanent (mostly instances of lax enforcement of the policy). The Kees court dismissed this evidence by stating that laxity of policy enforcement would not be enough to rebut the written policy.[22] The Ninth Circuit later affirmed the District Court.[23]
But in Cripe v City of San Jose,[24] the Ninth Circuit ruled that the City was obligated to accommodate officers into special duty assignments despite physical injuries that kept the officers from being able to execute forcible arrests. Citing the large size of the department (over 1000 officers), the court expressed doubt that the existence of a limited number of special duty officers unable to respond to an emergency situation was an undue hardship on the City. Taking a position at odds with some other court decisions, the Ninth Circuit panel in Cripe concluded that because making a forcible arrest was not required for special duty assignments, an accommodation by assignment to such a position was required.
In the next article in this series, we’ll explore whether state disability law provides any greater right to light duty.
[1] City of Wenatchee, Decision 6517-A (PECB, 1999)
[2] EEOC Technical Assistance on Title 1 of ADA 8 FEP Manual (BNA) § 9.4 at 405:7057-58 (1992).
[3] See Lujan v. Pacific Maritime Association, 165 F.3d 738 (9th Cir. 1999); Barnett v. U.S. Air Inc, 196 F.3d 979 (9th Cir. 1998).
[4] Malabarba v. Chicago Tribune Co., 149 F.3d 690 (7th Cir. 1998).
[5] Mengine v. Runyon, 114 F.3d 415, 418-419 (3d Cir. 1997); Staub v. Boeing, 919 F. Supp. 366 (W.D. Wa. 1996).
[6] Mengine (3d); Malabarba (7th); Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir.1995); Barnett v. U.S. Air Inc., (9th Cir. 1998).
[7] Myers v. Hose, 50 F.3d 278 (4th Cir. 1995); Vande Zande v. State of Wisconsin Dept. of Administration, 44 F.3d 538 (7th Cir. 1995).
[8] Carter v. Tisch, 822 F.2d 465 (4th Cir. 1987) (FRA case citing dicta in Marsh v. Arline, 480 U.S. 273 (1987)).
[9] Malabarba (7th).
[10] Id.
[11] Id.
[12] Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir.1995); Lujan v. Pacific Maritime Association, 165 F.3d 738 (9th Cir. 1999); Willis v. Pacific Maritime Association, 162 F.3d 561 (9th Cir. 1998).
[13] Barnett (9th).
[14] Id.
[15] Mengine v. Runyon, 114 F.3d 415, 418-19 (3d Cir. 1997).
[16] 820 F. Supp. 933 (E.D. Penn., 1993).
[17] 875 F. Supp. 740 (D. N. Mex., 1994).
[18] 149 F.3d 690 (7th Cir. 1998).
[19] 820 F. Supp. at 938 n.9.
[20] 973 F. Supp. 1191 (1997), aff’d, 161 F.3d 1196 (9th Cir. 1998).
[21] 973 F. Supp. at 1196.
[22] Id. at 1197.
[23] 161 F.3d 1196 (9th Cir. 1998).
[24] 261 F.3d 877 (9th Cir 2001).
