By Nikki Tolt

You are a prudent, responsible employer appropriately covered for any potential injuries your employees may incur by having Worker’s Compensation insurance. You either administer any Worker’s Compensation claims in house, or you have a third party administrator (“TPA”) handling the claims for you. When you have an injured employee, you comply with the law, report the claim to the insurance carrier, give the employee the appropriate forms, make sure the employee gets the appropriate medical care and ensure that the employee gets all the benefits he or she is entitled to. So how is it that you have run afoul of California’s disability laws as set forth in the Fair Employment and Housing Act (“FEHA”)?

Understanding the interaction between the two statutory schemes, Worker’s Compensation and the FEHA, and their respective mandatory duties, (sometimes referred to in Human Resources literature as the “Bermuda Triangle” and for good reason), is key to avoiding being blind sided by costly litigation and exposure to potentially huge liability, for which you may not have any insurance coverage (as a general rule, employment related claims are not covered by General Liability Insurance Policies and many employers do not carry Employment Practices Liability Insurance, thus leaving them exposed to the triple costs of defense, liability and the employee’s attorney fees under the FEHA fee shifting provisions). The important thing to remember in these cases is that each separate legal issue imposes separate and distinct duties and obligations on the employer and employee. Satisfying what is required of one does not mean that you've satisfied the other.

There are two very common misconceptions about disability discrimination claims. First, unlike some forms of discrimination, where disability discrimination is claimed, there is no need for a showing of personal animus- that is not an element of the claim. Humphrey v. Memorial Hospitals Assn . (9th Cir.2001) 239 F.3d 1128, 1139-40; Den Hrtog v. Wasatch Academcy (10th Cir. 1997) 129 F.3d1076, 1086; Borkowski v. Valley Cent. School Dist. (2d Cir. 1995) 63 F.3d 131, 135. Thus, technical violations lead to liability as surely as deliberate discrimination. And, in the context of disability laws and their practical application to the workplace, there are a number of technicalities which can entrap a complacent employer who is not knowledgeable and/or vigilant about its obligations under the FEHA.

Second, employers often think that, once an employee has made a Worker’s Compensation claim, they are insulated from claims of discrimination as long as they are compliant with the Worker’s Compensation laws. But, it is well established that accepting Worker's Compensation benefits does not preclude an employee from bringing a concurrent civil action against the employer. See Fretland v. County of Humboldt (1999) 69 Cal. App. 4th 1478; Bagatti v. Dept. of Rehabilitation (2002) 97 Cal. App. 4th 344; Unruh v. Truck Ins. Exchange (1972) 7 Cal. 3d 616; and Fermino v. Fedco (1994) 7 Cal. 4th 701, 707, for the holding that accepting worker's compensation does not constitute an election of remedies which would bar a civil action.

A. FEHA's Duties or Prohibitions Relating to Employees with Disabilities.

The FEHA has a complex set of rules that relate to disabled employees, but for purposes of the interaction with Worker’s Compensation claims, there are three separate subsets of disability duties found in the FEHA that are particularly key to understanding the employer’s obligations to its disabled employees. Each of these three separate duties under the FEHA can form the bases for a disability related claim, thus each must be analyzed separately.

1. FEHA Prohibits "Discrimination" Based on Actual or Perceived Medical Condition, Physical Disability or Mental Disability.

Under the FEHA, it is an "unlawful employment practice" to discriminate against any person because of "physical disability, mental disability, [or] medical condition." Government Code §12940(a). This discrimination ban applies not only to those persons who actually have a qualifying disability, but also to those who are "regarded as" disabled by their employer.
Government Code §12926.1(d) ("...the Legislature intends ... to provide protection when
an individual is erroneously or mistakenly believed to have any physical or mental
condition that limits a major life activity."); see also Government Code §12926(i)(4) and
(k)(4). It may seem obvious that an employee is disabled while they are out on Worker’s Compensation leave, the issue often gets muddied when the employee is released to return to work, with or without restrictions as discussed below.

2. FEHA Imposes a Duty to Provide Reasonable Accommodations.

In addition to the ban on "discrimination" against an individual with a disability, the FEHA requires that the employer provide reasonable accommodations that will allow the employee to perform the essential functions of the job. This duty is found in Government Code §12940(m), which makes it an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." The duty to provide a reasonable accommodation applies not only to employees with actual disabilities, but also to those who are mistakenly regarded or perceived to be disabled. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34, 54-56. This subdivision also gives the employer an affirmative defense to an accommodation claim by proving that the proposed accommodation would "produce undue hardship to its operation." Government Code §12940(m).

The phrases reasonable accommodations, essential functions and undue hardship are terms of art with very complex meanings and sets of rules attendant to each, which cannot be explored in this article. It is very important to gain an understanding of each of these phrases as failure to understand them and how they are to be applied can lead to liability. In addition, whether the employer “knows” of the physical or mental disability such that the duty to accommodate is trigger can be a tricky issue in the context of a Worker’s Compensation claim because the specifics of the employees condition is often only know to the Worker’s Compensation insurer or the TPA. Nevertheless, based on agency principle, some cases have imputed knowledge or notice to the insurer or TPA directly to the employer for purposes of triggering the accommodation duty. See, e.g., Diaz v. Federal Express Corp. (C.D. Cal. 2005) 373 F. Supp.2d 1034, 1056-1059; see also Rowe v. City & Co. of San Francisco (N.D. Cal. 2002) 186 F. Supp.2d 1047, 1054 fn.8 (employer "surely has the ability to review an employee's record for more information concerning the employee's medical condition in determining whether she possesses a disability and requires an accommodation").

3. FEHA Imposes on the Employer a Duty to Engage in the Interactive Process.

The duty to engage in the interactive process is found in Government Code §12940(n), which makes it an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." The duty to engage in the interactive process applies not only to employees with actual disabilities, but also to those who are mistakenly regarded or perceived as disabled. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34, 54-56.

Generally speaking, the interactive process takes place before an accommodation is either put into place or a determination is made that there is no accommodation that can be offered, but this duty is not static, thus, as the employee’s medical condition evolves, the duty to engage in the interactive process is ongoing such that different accommodations may be required, or under consideration, at different times. Nadef-Rahov v. Neiman Marcus (2008) 166 Cal. App. 4th 952.

The interactive process is a fluid and ongoing one that requires actual discussion between the employer and employee about the medical restrictions in issue, the essential functions of the job the employee had been assigned to work, other open positions if the employee can no longer work at their former job and what physical, or other, accommodations would assist the employee to get back to work:

“. . . [T]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees' with the goal of `identify[ing] an accommodation that allows the employee to perform the job effectively. (Citation.) . . . [F]or the process to work `[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process. (Citation.)” Id. at 985.

". . . [T]he employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different
accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule protects the framework of cooperative problem-solving contemplated by the ADA (the federal equivalent of FEHA and the same standard applies), by encouraging employers to seek to find accommodations that really work....").

Humphrey v. Memorial Hospitals Association (9 th Cir. 2001) 239 F.3d 1128, 1138.

The efficacy of the interactive process is an area which has been heavily litigated. Often the employer is accused of only making cursory or superficial efforts at finding an accommodation through the interactive process. Employers often come to the discussion with preconceived notions about what can be done to get the employee back to work at their existing job or an alternate job in an open, vacant position. The interactive process is delicate balance between listening to the needs and desires of the employee on the one hand and proactive research on the part of the employee such that effective solutions may be suggested by the employer on the other hand. The larger the employer, the more effort is expected of it when it comes to seeking out and finding reasonable accommodations for the employee.

B. The FEHA v. Worker’s Compensation

Two very common scenarios that invite a disability discrimination lawsuit occur when technical compliance with Worker’s Compensation laws has occurred.

Scenario one involves an employee who has been injured on the job, has sought medical treatment through a doctor of their choice and has filed a Worker’s Compensation claim. Typically, the employee is off work on temporary disability, often for an extended period of time. As part of resolving their claim through the Worker’s Compensation system, the employee submits to either an Agreed Medical Examination (“AME”) or a Qualified Medical Examination (“QME”). While the AME or QME report is pending, (this very frequently takes months after the actual medical evaluation by the designated doctor), the employee’s doctor releases the employee back to work without any restrictions. The employee submits a doctor’s note to the employer and the employer does one of two things, i.e., it either puts the employee back to work, or it sends the employee to a “company” doctor to get confirmation of the return to work release (see discussion below regarding fitness for duty examinations). If the employee is sent to the company doctor, the examination is usually cursory and rarely does the doctor make a recommendation that conflicts with the employee’s treating physician. The employee comes back to work and carries out the essential functions of the job (see discussion below) without incident for months.

When the QME or AME report is finally ready, the Worker’s Compensation claims adjuster forwards the “conclusions” either directly to the employer’s Human Resources department or to the TPA. Because of HIPAA confidentiality issues, the entire report is not conveyed; rather, just the doctor’s conclusions. If the AME/QME doctor concluded that the employee either should not be released to work, or that he or she may return to work with restrictions, that is typically where the liability issues arise. This is particularly true where the AME/QME doctor concludes that the employee cannot engage in the essential functions of their current job and recommends vocational rehabilitation for the employee. Employers often mistake these recommendations as a mandate to take the employee off the job and either allow the employee to languish on extended unpaid leave, or terminate their employment. These actions run afoul of the FEHA.

Whether the AME/QME doctor concludes that the employee cannot return to work, or that he/she can only do so with restrictions, the conclusion collides with the real life situation, i.e., the employee is back at work doing the job without accommodation. Clearly, the employer is faced with conflicting information. It is risky for the employer to rely solely on the AME/QME doctor’s evaluation as a number of courts have determined that such reliance is not a complete defense; rather, the reasonableness of such reliance is a question of fact for a jury to decide. See, e.g., Echazabal v. Chevron USA, Inc. (9th Cir. 2003) 336 F.3d 1023, 1028; Deppe v. United Airlines (9th Cir. 2000) 217 F.3d 1262 (Fact issue raised because employer's doctor stated that the plaintiff was unable to return to work, but plaintiff's own physician felt otherwise.)

Rarely are AME/QME doctors provided with essential information to evaluate whether or not the employee can return to work with or without accommodation for the simple reason that in the Worker’s Compensation system, the evaluation that is being sought from the doctor is different than an evaluation under the FEHA.

“[T]he workers' compensation definitions of 'disability' do not distinguish between marginal and essential functions and do not consider whether an individual can work with reasonable accommodation. In many workers' compensation cases, a person has a 'total disability' when s/he is unable to do certain tasks, even if those tasks are marginal functions or if s/he could perform them with reasonable accommodation. Thus, a person may be 'totally disabled' for workers' compensation purposes and yet still be able to perform a position's essential functions with or without reasonable accommodation.”

Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 188.

As a practical matter, the AME/QME doctor is rarely given a job description, let alone an analysis of what functions of the job are truly essential such that any restrictions can be evaluated in light of the realities of the job. Even if it is conceded that the employee cannot return to their former position, the company has a duty to see if it has any open, available positions for which the employee is qualified. Those potential jobs are virtually never presented to the AME/QME doctor for evaluation. In litigation, these doctors almost always concede that if they had know that the employee was back at work doing the job without accommodation, their opinions would change, thus leaving the employer on the hook for relying on their original opinions.

The appropriate response to the conflicting medical opinions is to call the employee in and engage in the interactive process. If there is a serious concern for the safety of the employee, it may be reasonable to place the employee on a temporary leave while the conflicting opinions are resolved. However, the employer cannot just ignore the employee’s input, especially if he or she has been doing the job without accommodation (sometimes employers later argue in litigation that the employee was not disabled, therefore the employer owed them no duty; but liability cannot be escaped as the employee is obviously perceived to be disabled, mistakenly or not, which holds the employer to the same standards as if they actually were disabled). And it is dangerous to simply throw the employee back into the Worker’s Compensation system as it often takes many months and occasionally years to wend through the procedural labyrinth of that system without any protection from liability under the FEHA.

As a general rule, it is important to document all communications and all steps taken in the interactive process in the event the validity of the process is challenged. It is particularly important for the employer to document all of the communications with the employee once the employer is aware that there is exists a conflict in the medical opinions. It is reasonable to require the employee to return to their own doctor to receive clarification as to any restrictions in light of the AME/QME report. It is also reasonable to ask the employee for permission to communicate directly with his or her treating physician to seek clarification. If satisfactory information is not provided through these avenues, it is also reasonable for the employer to send the employee to a doctor of the employer’s choice for a fitness for duty examination (which will presumably be more thorough than the typical cursory return to work examination by the company doctor). Generally, an employer may conduct a fitness-for-duty examination of an employee if it is job-related and consistent with business necessity. Government Code §12940(f)(2). However, such an examination must be related to a legitimate business reason and cannot be just a fishing expedition which then implicates the Constitutional right to privacy (for example testing a truck driver for drugs after an accident is legitimate, but randomly testing clerical workers for drugs would rarely pass muster). In the context of a disabled employee, where there is a legitimate conflict in the information available to the employer which is not clarified promptly by the employee, such an examination would be appropriate before any evaluation can be made as to whether the employee has a disability that must be accommodated, if possible.

Another landmine for the employer in this scenario exists when the AME/QME doctor sets out either ambiguous restrictions or restrictions that do not relate to an essential function of the job. For example, a restriction of “no heavy lifting” will likely mean something different for the construction worker than it does for the clerical worker. Thus it is dangerous to affect the employees status without getting clarification as to exactly what is the weight limitation in issue. Second, the employer must determine whether the weight restriction is actually an essential function of the job. If the doctor clarifies that “no heavy lifting” means no lifting over 50 lbs, the construction worker may have to lift items weighing 50 lbs or more, while the clerk is highly unlikely to do so, which means it would not be an essential function of the job. But even if it is determined that lifting items 50 lbs or more is an essential function of the job, the employer has a duty to determine whether some accommodation is available to allow the employer to carry out this essential function so that he or she can continue working. For example, it would not be reasonable to require an employer to provide the employee with an assistant to do all the heavy lifting, on the other hand, providing the employee with a lifting mechanism like a dolly or forklift may be the solution, depending on the circumstances. Indeed, through the interactive process, the employer may learn that the employee has already implemented an accommodation on their own in order to carry out their job.

The second frequent scenario that gets employers afoul of the FEHA is the situation where the employee has filed a Worker’s Compensation case and in that system, the employee is deemed "permanent and stationary" and unable to resume the essential functions of the job and is thus eligible for vocational rehabilitation. Even when the employee is deemed 100% disabled in the context of Worker’s Compensation, that does not mean the employer can avoid seeing if an accommodation would allow the employee to perform the essential functions, or if reassignment to another vacant position would do the trick. See e.g. , Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34; Diaz v. Federal Express Corp. (C.D. Cal. 2005) 373 F. Supp.2d 1034; Rowe v. City & Co. of San Francisco (N.D. Cal.2002) 186 F. Supp.2d 1047. It is not uncommon in Worker's Compensation claims that the employee's "on paper" medical restrictions seem to disqualify the employee from performing the essential functions. It is important to look beyond the "on paper" restrictions and to determine whether the employee is actually able to perform the essential functions with or without accommodations. If an employer blindly relies on these "on paper" restrictions without a meaningful assessment of how they impact the ability to perform the essential functions, the employer may open itself up to liability. Gelfo, supra, at 46 fn. 11 ("Also under FEHA, as under the ADA, 'an employer cannot slavishly defer to a physician's opinion without first pausing to assess the objective reasonable-ness of the physician's conclusions.' ... This is particularly true in a case such as this" where the stated restrictions were merely "prophylactic measures aimed at avoiding potential injuries" that could occur.).

Further, offering an injured employee vocational rehabilitation in the worker’s compensation system is not considered a reasonable accommodation under the FEHA and does not satisfy the duty to accommodate. The Equal Employment Opportunity Commission's Enforcement Guidance ( makes this point clearly, noting that the law requires employers to accommodate an employee in his/her current position through job restructuring or some other modification, absent undue hardship. If it would impose an undue hardship to accommodate an employee in his/her current position, then the employer is required to reassign the employee to a vacant position s/he can perform, absent undue hardship. Further, as a general rule, the disabled employee is entitled to preference over a non-disabled employee when reassignment of an existing employee is in issue. Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 265. However, if the vacant position would constitute a promotion, or violate a bona fide seniority system under a collective bargaining agreement, the employer has no duty to promote the disabled employee or violate the collective bargaining agreement.

Even when the Employer understands that it must make efforts to determine whether the employee can be accommodated, another mistake that is commonly made in this situation is the failure to truly interact with the employee. Often, Human Resources personnel look at job descriptions and the restrictions identified by the employee’s doctor and they unilaterally determine that no accommodation can be made, or that the employee cannot be placed in another job. For example, in Nadef-Rahov, supra, the plaintiff’s doctor stated that she was unable to do work of “any kind” and the plaintiff herself indicated severe physical restrictions. Nevertheless, she sought to return to work, but was denied the opportunity because the Human Resources employee unilaterally determined that Plaintiff could not do the work required for any of the open positions, with or without accommodation. The Court held that “A jury could also find it was unreasonable for Neiman Marcus to determine unilaterally that Nadef-Rahov was unable to perform any available vacant position in the company with or without accommodation and that her condition was not going to improve in the near future.” Id. at 989. In Prilliman v. United Airlines (1997) 53 Cal. App.4th 935, the court held that when an employer learns of an employee's disability, it is required to offer a reasonable accommodation, unless it can demonstrate that doing so would impose an "'undue hardship.'" Id. at 947. It then cited with approval -- and adopted – the following language from a case construing an analogous statute:
"[An employer] may not merely speculate that a suggested accommodation is not feasible. When accommodation is required to enable the employee to perform the essential functions of the job, the employer has a duty to 'gather sufficient information from the applicant and qualified experts as needed to determine what accommodations are necessary to enable the applicant to perform the job....'" (Id. at 948-949, emphasis added, citation omitted.)

Alternatively, employers in this situation often make the mistake of requiring the employee to be 100% healed before they are allowed to return to work.

"A '100% healed' or 'fully healed' policy discriminates against qualified individuals with disabilities because such a policy permits employers to substitute a determination of whether a qualified individual is "100% healed" from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation." McGregor v. National Railroad Passenger Corp. (9th Cir. 1999) 187 F.3d 1113, 1116. (Discussing the ADA, which is analogous to the FEHA). Where a plaintiff puts forth evidence that a company has a "100% healed" policy, summary judgment is inappropriate because that is a disputed material issue. Id at 1116.
In fact, it is illegal to have a 100% healed policy because the required interactive process is fluid and ongoing, and may require continual reassessment. Humphrey v. Memorial Hosp. (9th Cir. 2001) 239 F.3d. 1128, 1138.
Further, any policy of not making any permanent job accommodations is a per se violation of the FEHA, specifically Government Code §§ 12940(m) and 12940(n). "The law and the regulations clearly contemplate not only that employers remove obstacles that are in the way of the progress of the disabled, but that they actively re-structure their way of doing business in order to accommodate the needs of their disabled employees." Sargent v. Litton Systems Inc., (N.D. Cal. 1994) 841 F. Supp. 956, 961 (applying California law.) Employer's inflexible rule of no permanent accommodations itself violated the requirements of California law.

Just being aware of the fact that the two statutory schemes impose different obligations on the employer at different times and based on different standards gives the smart employer the edge in looking out for ways to avoid liability while at the same time complying with the law. This should result in lessened exposure to a disability discrimination claim, while at the same time benefitting the both the employer and employee by salvaging the working relationship in a way that is constructive and advantageous to both parties.



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Nikki Tolt, Esq.
2008 DJ Top Neutral

2012 DJ Top Neutral

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