Alert: California Court of Appeal Finds Accommodation Does Not Require Converting Temporary Position To Permanent

January 26, 2006

On January 25, 2006, the California Court of Appeal (Second District) held that an employer need not accommodate a disabled employee by indefinitely assigning him to a position that has traditionally been used as light duty assignment for temporarily disabled employees. 

In Raine v. City of Burbank, 06 CDOS 704, a police officer injured his knee while on patrol.  To accommodate him as his injuries healed, the police department assigned him to a front desk position.  The department had traditionally reserved that desk position to accommodate officers who were temporarily injured.  When it was not staffed with injured officers, the front desk was staffed with civilian "police technicians" who were paid substantially less than officers.  Occasionally, uninjured uniformed officers covered the desk in the absence of injured officers or police technicians.

Raine remained in this front desk position for six years, until his personal physician advised him that his injury would not improve further and that he would never be able to perform his previous police patrol duties.  At that point, the department advised Raine that it would no longer assign him to the desk without changing his status to police technician.  Raine declined, took a disability retirement and sued for failure to accommodate his disability under California's Fair Employment and Housing Act. 

The Court of Appeal upheld summary judgment against Raine's claim, finding that requiring the department to create a permanent police officer front desk position would be unreasonable.  The court held that the economic burden of accommodating Raine was irrelevant, because reasonable accommodation did not include reclassification of the desk job from a civilian to a uniformed officer position. 

The court rejected Raine's argument that a history of temporary accommodations in the desk position made permanent assignment reasonable.  It adopted the employer's argument that, "employers who create light-duty or temporary positions for the purpose of accommodating temporarily disabled employees will be dissuaded from doing so if they can be forced to maintain those newly created light-duty positions indefinitely." 

The Raine decision emphasizes the importance of clarity in communications regarding temporary light-duty accommodations.  Employees placed on such assignments should be advised in writing that the work is being temporarily assigned as an accommodation, ideally with a schedule for completing the assignment or updating the employer concerning the employee's status.  If positions are designated on-going as temporary light duty accommodations, such designation should be documented in the employer's administrative files as well.