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The Employer’s Duty to a “Permanently Disabled” Employee

Posted by Joe Sayas | Aug 29, 2019 | 0 Comments

Lara May was a dedicated and long-time employee for ABC Equipment Co. (names are changed to protect confidentiality). She was injured at work and had to take an extended medical leave of absence.  Prior to her injury, Lara May was a valued employee at ABC Equipment, and was praised for her work ethic and job performance by her supervisors. During her medical leave, Lara also had an ongoing Workers' Compensation case for her work-related injuries.

While her injuries had healed, a Workers' Comp judge found that Lara was 17% permanently disabled. However, Lara's doctor gave her a clean bill of health and released her back to work. When she contacted her employer to advise that she could return to work, the employer responded by terminating her.

The employer argued that Lara was terminated because of her 17% permanent disability. However, there was no finding that Lara was not able to return to work. There was also no finding that Lara was a Qualified Injured Worker who needed to be retrained for another position. In other words, the employer fired Lara without inquiring whether her 17% permanent disability allowed her to perform the essential duties of her job.

Lara contacted our office for help. She had tried to return to work and had submitted a return-to-work authorization from her doctors, which had approved Lara's return to work without restrictions. This meant that despite the 17% permanent disability finding, Lara could still perform the essential duties of her job. However, Lara's managers disregarded the doctors' return-to-work authorization, and instead penalized Lara for the purported permanent restrictions finding in the Workers' Compensation case.  The employer noted in Lara's personnel file that her termination was due to “Partial/Total Disability” and that she was not recommended for re-hire.

 California law prohibits discrimination based on disability or medical condition. California law defines disability (whether mental or physical) as any disease, disorder, cosmetic disfigurement, anatomical loss, emotional or mental illness, or specific learning disabilities, which limits a major life activity. Working at a job is considered a major life activity.

The employer has a duty to provide reasonable accommodation to employees to enable them to work despite their disability.  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.

Depending on the employee's specific restrictions and the employer's circumstances, the following are examples of reasonable accommodations: making facilities accessible to and usable by disabled individuals; job restructuring; offering part-time or modified work schedules; reassigning to a vacant position; or acquiring or modifying equipment or devices for use by the disabled employee.

The employer also has the duty to find and offer suitable jobs for the employee. Simply telling the disabled employee to check available job postings in the company is not enough. The employer must in good faith determine whether a disabled employee can be transferred or reassigned to a vacant position. The employer is in a better position to know what jobs are vacant or may become vacant.

 Our law firm prepared Lara's case for trial. However, on the eve of trial, the employer agreed to settle the case and pay Lara a significant amount of damages.

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About the Author

Joe Sayas

C. JOE SAYAS, JR., Esq. Recognized as one of California's top employment and labor law attorneys by the Daily Journal, C. Joe Sayas, Jr. has devoted his more than 25-year litigation career to protecting workers' and consumer rights. He has fought for employees discriminated due to disability, ra...

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