• California Employer Need Not Offer Accommodation to Disabled Employee Who Never Requested One
  • August 3, 2010 | Author: Mark S. Askanas
  • Law Firm: Jackson Lewis LLP - San Francisco Office
  • Deciding against an employee alleging disability discrimination under the California Fair Employment and Housing Act, the California Court of Appeal has held that where the employee never requested an accommodation or indicated she wanted to continue working after sustaining a work-related injury, the employer had no duty to offer an accommodation. Milan v. City of Holtville, No. D054139 (Cal. Ct. App. Jul. 15, 2010).  Although the employee had ample opportunity to tell the employer she wanted to retain her job, she did not.  Instead, she accepted retraining benefits to train for another career.  Accordingly, the employer did not violate the FEHA by failing to offer her accommodations for her disability. It is the employee who must initiate the interactive process, the Court held.

    The Facts

    Tanya Milan worked as a water treatment operator for the City of Holtville.  On September 10, 2002, while Milan was moving a large metal angle iron, she severely injured her neck.  She underwent surgery and eventually applied for and received workers’ compensation benefits.

    On June 25, 2003, Milan was examined by Dr. Eric Korsh, a physician retained by the City.  Based on his examination, Dr. Korsh concluded Milan would not be able to return to work at the water treatment plant because the job involved significant bending, twisting, and lifting.

    On August 4, 2003, the City’s workers’ compensation administrator sent Milan a letter stating, “Dr. Korsh reports you will not be able to return to your usual job because of the effects of your work injury.”  The letter further stated that, in light of Dr. Korsh’s assessment, Milan was eligible for rehabilitation benefits.  It also informed Milan that she could dispute the City’s determination by returning a form to the City.

    Milan subsequently accepted the offered rehabilitation benefits, but did not contact anyone at the City about her condition or her plans to return to work. 

    On March 30, 2004, the City terminated Milan’s employment because of Dr. Korsh’s conclusion that Milan could not return to her prior position and there was no City job that Milan could reasonably perform.

    Thereafter, Milan sued the City for failing to accommodate her disability.  Following a bench trial, the court entered judgment in favor of Milan, awarding her $142,410 in back pay and damages and $86,871 in attorneys’ fees and costs.  The City appealed, arguing that it had no obligation to accommodate Milan’s disability because Milan never requested any accommodation or even requested that she be restored to her position.

    Employee Initiate Process

    Under the FEHA, an employer must “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.”  Cal. Gov’t Code § 12940(n).  The failure to do so gives rise to liability under the FEHA.

    The Court noted, “Importantly. . .  section 12940 subdivision (n) requires that the employee initiate the process.”  Even reading the employee’s obligations under the FEHA generously, the Court found that Milan did not satisfy them.

    The City’s workers’ compensation administrator informed Milan of Dr. Korsh’s appraisal in August 2003.  Milan did not object to the assessment; rather, she accepted the rehabilitation benefits.  By the time the City terminated her employment, Milan had not worked for over 18 months.  Although the appraisal and absence did not create a duty to request an accommodation, the Court found “those circumstances did require that, at the very least, she communicate to the City that she planned to continue working at the water treatment plant.”  In the absence of such communication, the City was not required to initiate any discussions of accommodations.

    The Court noted, “Imposition of such a duty under those circumstances would contradict the express terms of the statute which requires that the employee initiate the interactive process.”  Accordingly, the Court reversed the trial court’s judgment and ordered judgment entered in favor of the City.

    Implications for Employers

    This case takes a commonsense approach to addressing communication with employees on extended disability or workers’ compensation leaves of absence.  Under FEHA, employees must initiate the interactive process and request an accommodation in the first instance.  Although employees need not use any special language to make such a request, they should communicate with their employers regarding their status and intent to return to work.  Without such communication, employers do not know whether any accommodations may be needed and cannot engage in a meaningful interactive process.