Joan Herrington, Esq.

Atkins v. City of Los Angeles (2017) ___ Cal.Rptr.3d ___, 2017 WL 588127 (Atkins), involved an appeal from judgment in favor of former city police department recruits who had sued the city for Fair Employment and Housing Act (FEHA) violations, such as disability discrimination and failure to accommodate. (Gov. Code, § 12940, subds. (a), (m).) Each of the recruits had sustained on-the-job injuries and were temporarily reassigned to light duty-a common practice under the Workers Compensation Act. (Lab. Code, § 4658.1.) Although reassignment to a temporary position is not considered a reasonable accommodation under the Fair Employment and Housing Act, an employer may offer, and an employee may choose to accept or reject, a temporary reassignment during the interactive process. (Cal. Code Regs., tit. 2, § 11068, subd. (d)(3).) Accepting reassignment to a temporary position may allow the employee time to heal while still working and/or may allow the employer time to find a permanent alternative position through the continuing interactive process. (Ibid; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 264 [“A temporary position is not, however, a reasonable accommodation. It represents, like unpaid leave, a way to put a disabled employee on hold while the attempt to locate a permanent position is ongoing”].)

In the Los Angeles Police Department (Department), reassigning an injured recruit to a temporary desk job was standard practice. Under the Department’s “Recycle” program, the recruits could remain on light duty for up to six months and be reinstated to the Academy once they were sufficiently healed. Consistent with both the Department’s past practice and the FEHA’s requirement that an employer make reasonable accommodation unless or until it creates an undue hardship for the employer, all of the recruits had been performing their reassigned desk jobs for more than six months. (Gov. Code, § 12940, subd. (m).) While the recruits were still recuperating, the city told them that, unless they were medically released to Academy work, they could quit or be fired. Needless to say, none of the recruits could obtain the necessary medical release, so the city fired or constructively discharged them.

An employee bringing a disability discrimination action must prove that he or she was a “qualified individual” capable of performing the essential functions of the job held or desired. (Cal. Code Regs., tit. 2, § 11065, subd. (o); Green v. Green v. State of California (2007) 42 Cal.4th 254, 262.) Through a fundamentally flawed analysis of the “qualified individual” test, the Atkins court reversed the recruits’ disability discrimination verdict but affirmed the reasonable accommodation verdict because it found that the recruits were “qualified individuals” only for their temporary reassignment positions, but not their Academy positions.

As the decision acknowledged, that employee is “qualified” if he or she can perform the essential job functions with reasonable accommodation. (Gov. Code, § 12940, subd. (a); Cal. Code Regs., tit. 2, § 11065, subd. (o).) Yet, in a case where the reasonable accommodation provided is temporary reassignment to allow the employee time to recover while still working, then the determination of whether an employee is “qualified” for his or her regular job occurs at the time the employee is sufficiently healed to request reinstatement. In Atkins, the city fired or constructively discharged the recruits during the reassignment period. By finding that the recruits were not “qualified” for their Academy positions before they had a chance to recover, the decision ignored the Act’s provision that this assessment should be made after the employer has provided any necessary reasonable accommodation. (Gov. Code, § 12940, subd. (a); Cal. Code Regs., tit. 2, § 11069, subd. (d).)

The error of the Atkins court’s timing of the “qualified” test becomes even clearer when a leave of absence is the reasonable accommodation at issue. Under the decision’s analysis, an employee could never be allowed recuperative leave as a reasonable accommodation, because the employee needs the leave because he or she is temporarily precluded from working. Performing the “qualified” test before the employer has provided the employee with the entire leave of absence would result in an inevitable finding that the employee is not a “qualified individual” entitled to leave in the first place. Yet, both state and federal law agree that a leave of absence is a form of reasonable accommodation. (Cal. Code Regs., tit. 2, § 11068, subd. (c); 29 C.F.R. § 825.702(a); Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263; Nunes v. Wal-Mart Stores, Inc. 164 F.3d 1243, 1248. Further, an employer’s breach of the duty to provide reasonable accommodation is a denial of an “employment benefit” that supports a disability discrimination claim. (Cal. Code Regs., tit. 2, §§ 11008, subd. (g), 11009, subd. (c), 42 U.S.C. § 12112(5)(A); Holly v. Clairson Industries, L.L.C. (11th Cir. 2007) 492 F.3d 1247, 1262.) Consequently, as the court in Jadwin v. County of Kern, 767 F.Supp.2d 1069 (E.D. Cal. 2011) stated:

In cases where a leave of absence may be a reasonable accommodation, the question is not whether the employee can perform the essential functions of the job during the leave period. Rather, the question is whether the leave of absence is likely to enable the employee, upon his return from leave, to resume performing the essential functions of the job. Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226 (1999); Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1135-36 (9th Cir. 2001); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999).
(Id. at Dkt No. 311, Memorandum Decision and Re Defendants’ and Plaintiff’s Cross-Motions for Summary Judgment, or in the Alternative, Partial Summary Judgment at pg. 82-83, FN 20.)

Similarly, in cases, such as Atkins, where a temporary reassignment may be an agreed upon reasonable accommodation to allow the employee time to recover while still working, the question is not whether the employee can perform the essential functions of his or her regular job during the reassignment period. Rather, the question is whether the employee can perform the essential job functions of his or her regular job once the employee has sufficiently healed to request reinstatement. If not, then the temporary reassignment was not a reasonable accommodation because it was not effective at enabling the employee to perform the essential functions of his or her regular job. (Cal. Code Regs., tit. 2, § 11065, subd. (p).)

When an employer knows an accommodation is not effective, then the employer must engage in the interactive process to find a different reasonable accommodation. (Cal. Code Regs., tit. 2, § 11069, subd. (b); Humphrey v. Memorial Hospitals Association (2001) 239 F.3d 1128, 1138 [An employer has a “continuing” duty to provide reasonable accommodation that is “not exhausted by one effort”].) Moreover, an employer must consider all accommodations of which it is aware. (Cal. Code Regs., tit. 2, § 11068, subd. (e).)

In Atkins, the city knew that the temporary reassignment had not enabled the recruits to heal sufficiently with six months to allow reinstatement to the Academy. It also knew that it had some 150 open and funded positions to which the recruits might be permanently reassigned. So, the city had a duty to automatically reassign the recruits to any of these positions for which they were “qualified.” (Prilliman v. United Airlines, Inc. (1997) 53 Cal.App.4th 935, 950.) Accordingly, the Atkins court’s analysis of the disability discrimination claim should not have stopped at whether the recruits were “qualified” for their Academy position. The court should also have analyzed whether the recruits were “qualified” for any of the available alternative positions for which they desired reassignment.

In sum, the Atkins court ignored existing law when determining that the recruits were not “qualified” for the purpose of their disability discrimination claim.

Joan Herrington is a former Administrative Law Judge with the now defunct Fair Employment and Housing Act. She maintains her own law practice, primarily representing individuals in FEHA, CFRA, and Unruh Act cases. She is a frequent speaker on various employment law issues, such as disability, pregnancy, medical leave, and right to a smoke-free workplace protections, and also conducts mediations in these areas of law. Ms. Herrington may be contacted at Bay Area Employment Law Office located at 5032 Woodminster Lane, Oakland, CA 94602-2614 or jh@baelo.com.