By Jeremy Pasternak

In the November 2004 issue of Forum, Morgan Smith and I examined the interplay between workers’ compensation and the California Fair Employment and Housing Act. (For a more detailed discussion of employee rights under both statutory schemes, see “Where Workers’ Compensation Meets the FEHA.”) Two recent appellate decisions, Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34 and Green v. State of California (2006) 33 Cal.Rptr.3d 254, rev. granted, the latter now before the California Supreme Court, bear on that discussion. Both cases started with workers’ compensation actions. Both employee-plaintiffs had on-the-job injuries, had been found by the workers’ compensation process unable to work, and were released from work and/or not put back to work. Both were later able to bring an action for disability discrimination and/or failure to accommodate disability. Coincidentally, both were represented by CAOC member David H. Greenberg in Beverly Hills.

Mr. Green’s case resulted in a multi-million dollar verdict. On appeal, which was handled by CAOC member and appellate specialist Norman Pine, that verdict was affirmed, and the Court also made a significant ruling regarding the burdens placed on employers and employees in cases of this type. Mr. Gelfo lost his case at trial, but the appellate court reversed, holding not only that Mr. Gelfo should be granted retrial based on instructional error, but also that, as a matter of law, the employer had failed to engage the plaintiff in a “good faith interactive process,” that is, it was liable for failing to duly consider the plaintiff’s physical condition and how he might be returned to work.

I. A Brief Overview of the Intersection Between Workers’ Comp and FEHA

Under the workers’ compensation laws, if an employer does not have “regular,” “modified,” or “alternate work” for an employee to return to following a workplace injury, the employer does not have to return the employee to the workplace. (Lab. Code §§ 4658, 4658.1.) In practice, this means that if the employee is not 100% fit to return to the original job, unless there is some other job to do that is open, the employee is out of a job and is fired, and there is likely no violation of the workers’ compensation laws. However, as we pointed out in our previous article, an employer acting in a manner consistent with these laws may still be in violation of FEHA.

An employee who is injured in a workers’ compensation accident may in fact be “disabled” for the purposes of FEHA. The definition of “disabled” under FEHA is broad, and includes any physical or mental impairment or loss which “limits a major life activity.” (Gov. Code § 12926(i)(1).) FEHA expressly includes “working” as a major life activity. (See Gov. Code §§ 12926(i)(1)(C); 12926(k)(1)(B)(iii).) Whether or not a person is disabled is evaluated without taking into account the salutary effects of any mitigating measures, such as medication, prosthetics, and the like. (Gov. Code § 12926(k)(1)(B)(i).) This further broadens the application of the statute.

To give two examples not uncommonly arising from the workers’ compensation realm: a simple broken leg probably does not qualify, because this is a mere temporary impairment. But a torn meniscus probably does, as this injury is likely to cause at least some ongoing problems with physical activity.

The California Fair Employment and Housing Act (“FEHA”) (Gov. Code § 12940 et seq.) protects employees who suffer from a mental or physical “disability.” It not only protects them from discrimination, but also imposes upon employers two affirmative duties:

a) to accommodate those disabilities, that is, figure out ways to work around them and keep the employee working. (Gov. Code § 12940(n); Prilliman v. United Air Lines, Inc., (1997) 62 Cal.Rptr.2d 142, 149-150); and,

b) to engage the employee in a good-faith interactive process, that is, to sit down with the employee and discuss the matter, to work cooperatively to find ways to keep the employee working. (Gov. Code § 12940(n); Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261.)

There are a variety of ways to accommodate disabilities. Among them are not only transfers, but also restructuring and modification of jobs:

Job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions. (Cal. Admin. Code tit. 2, §7293.9(c).)

Again, this is broader than the requirements under the workers’ compensation laws. For example, under that scheme, the employer is only required to provide modified work for 90 days. Under FEHA, it can be indefinitely.

In sum, then, it is possible (in fact, common) for employers to act in a fashion which is wholly consistent with workers’ compensation law, but inconsistent with FEHA.

II. Green v. State of California – The Employer’s Burden Regarding Doing the Job

One of the keys to accommodations law is that, in the end, the employee must be able to perform (either with or without accommodations) the “essential functions of the job.” For example, a blind truck driver simply can’t drive a truck. The question that is addressed by Green v. State of California is: whose burden is it to prove that the employee can/cannot perform the essential functions of the job?

The Green court held in its published opinion prior to certiorari being granted:

The prima facie case for disability discrimination under section 12940, subdivision (a), therefore, does not require plaintiff to prove that he is a qualified individual. Rather, the burden is on defendant to establish that plaintiff is incapable of performing his essential duties with reasonable accommodation. ( Green v. State of California (2006) 33 Cal.Rptr.3d 254, 262.)

The court also put it this way:

We conclude that it was defendant’s burden to prove plaintiff’s incapacity as an affirmative defense and not plaintiff’s burden to prove his capacity to perform as part of his prima facie case. ( Id. at 256.)

This was absolutely correct. Administrative regulations had long established that an inability to perform essential functions was a defense, not something the plaintiff had to establish. The Green court noted that some cases had failed to acknowledge this and the language of FEHA itself, which indicates that a failure to perform duties is for the employer to prove:

This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, … where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations. (Gov. Code § 12940(a)(1).)

The Green court also noted that despite the language of FEHA and the administrative regulations, this area needed clarification, because of inconsistencies in the case law, CACI jury instructions, and even some treatises. By confirming that the burden is properly placed on the defendant-employer to demonstrate that the employee could not do the job, the court, obviously, lessened the employee’s burden. But the ruling is more significant than just that, and has particular significance in FEHA disability cases which arise out of a workers’ compensation injury. The fact a case arises from a workers’ compensation injury necessarily means the employee was on the job before the injury; the cases which are addressed by this article involve present employees, not applicants for employment. Therefore, an application of the Green court’s standard to these cases makes perfect sense. Why should employees have to prove that they were capable of performing the essential functions of the job when, at least at some point, they obviously were performing them?

Of course, the ruling makes just as much sense in applicant cases, where the employee was never hired in the first instance. In such cases, the employer obviously has superior information regarding the job functions and the burden is properly placed on the employer to prove an inability to perform them.

The ruling also makes logical sense in terms of the posture of these cases as a whole. If a case like this has been brought, then (at least it is alleged), the employee was not accommodated. If the employee in fact was not accommodated, then surely it must fall to an employer-defendant to demonstrate that accommodating the employee would not have made any difference (that is, that the employee could not have performed the essential functions of the job).

The Green ruling also makes particular sense in light of a ruling in a subsequent case, Gelfo v. Lockheed Martin, discussed below.

The Green court acknowledged that in determining that the burden is on employers to show an inability to do the job, it was addressing some apparent inconsistencies in how the law had been applied in the past. Hence, the grant of review by the California Supreme Court should not be too much of a surprise. However, as the court made clear in its opinion, this ruling is wholly consistent with the statute, and as a matter of practicality, makes perfect sense. Again, it only seems fair that an employer who has not given an applicant or employee an opportunity to prove him or herself on the job should have the burden of showing that “they couldn’t have done the job anyway.”

Subsequent to the holding in Green, another appellate court reached a different conclusion in Williams v. Genentech (2006) 42 Cal.Rptr.3d 585. The court noted the Green decision and the fact that review had been granted by the Supreme Court, and then held, “Pending review [of Green], we rely on the line of cases holding that the plaintiff must show he or she

is qualified to perform the essential functions of the job.” ( Id. at 596, fn. 11.) The California Supreme Court recently granted review of the Williams case, with consideration being deferred pending resolution of the Green case.

III. Gelfo v. Lockheed Martin – The Duty to Engage in the Interactive Process

Again, employers must engage in a “good faith interactive process” to determine what, if anything, can be done to accommodate a disabled employee, including an employee disabled by a workers’ compensation injury and who now seeks to come back to work. But what if the employee is notdisabled?

This again, is particularly significant in workers’ compensation cases, because in those cases, often the injuries, though serious, do not meet the standard of “disability,” even under the broad standards of FEHA. Yet even then, they are likely to be sufficient for an employer to decide that the employee cannot return to work, a decision which may be legitimate under the workers’ compensation scheme.

In Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34, the employee was, after a workers’ compensation absence, fired and then later not rehired, because of a perception that his prior injuries prevented him from doing the job. At trial, the court determined that the plaintiff-employee was not actually “disabled” for the purposes of the statute. On that basis, the court then dismissed the causes of action for failure to accommodate disability and failure to engage in the good faith interactive process, on the basis that if the employee was not actually disabled, there was nothing to accommodate and therefore no meaningful interactive process to conduct.

The appellate court reversed, holding that the causes of action for failure to accommodate disability and failure to engage in the good faith interactive process should have gone to the jury. The court reasoned that an employer should not be able to avoid liability for refusing to engage in a good faith process with an employee that it believes to be disabled simply because it later finds out (in litigation) the employee actually is not. ( Id. at 60.) The court also recognized that as a matter of practicality, the employer would, if it engaged in the process, realize that the employee actually could be returned to work. Therefore, the ruling both avoids a legal “windfall” to the employer, and helps ensure that persons are not denied access to the workplace because of either actual or only perceived disabilities.

Of particular significance to FEHA’s relation to the workers’ compensation scheme is this language from the Gelfo decision:

A policy requiring an employee be “100 percent healed” before returning to work is a per se violation even under the ADA, because it permits an employer to avoid the required individualized assessment of the employee’s ability to perform the essential functions of the job with or without accommodation. ( Id.at 50.)

Lockheed’s workers’ compensation policies included a “100% policy.” This is in fact quite common; many companies require that following a workers’ compensation injury, the employee be fully functioning, with no remaining restrictions on their work. Again, this may be acceptable under the workers’ compensation scheme (which compensates the employee if based on such a policy there is no return to work) but is simply not acceptable, as the GelfoCourt makes clear, under FEHA.

IV. Summary

The interaction between workers’ compensation and FEHA is still complicated. However, with the rulings in Gelfo and Green (assuming the appellate court’s decision is upheld) there is now additional direction for employees, their counsel, and the court. According to Gelfo, employers cannot just ignore the injuries of their employees and their obligation to sit down with those employees and see if they can be returned to work, and then pull out a “get of jail free” card on the basis that the employee is not actually disabled. Per Green, assuming it is upheld by the California Supreme Court, the burden of proof regarding an employee’s ability to perform the essential functions of the job is on the employer, not the employee, as it should be, given that an employer who has failed to accommodate an employee should have to establish – as a defense – that the employee could not have performed the job “anyway.”