In Nealy v. City of Santa Monica, 2015 WL 632228, the Second District Court of Appeals held that an injured worker was properly denied the right to return to work where he was unable to perform essential functions of his job and lacked qualifications for other positions despite efforts to accommodate him.
Plaintiff, Tony Nealy worked for the City of Santa Monica as a solid-waste equipment operator. He injured his right knee on the job and as a result was temporarily totally disabled intermittently for multiple years. After Nealy’s second period of temporary total disability, his physician cleared him for light duty consisting of semi-sedentary office work, but no such job was available with the City.
Nealy wanted to return to his job as a solid-waste equipment operator, but the City found that Nealy’s restrictions were so significant that it could not find a way to reasonably accommodate the solid-waste equipment operator position. Nealy applied for another position as a planning staff assistant that he could perform with his work restrictions, but he was found to lack the requisite experience in clerical support. The City then sent Nealy a letter stating it was unable to provide him with reasonable accommodation into an alternative position because he was not minimally qualified for the only position available that was not a promotion.
Subsequently, Nealy filed a lawsuit against the City under the Fair Employment and Housing Act (FEHA) alleging, among other claims, failure to provide reasonable accommodation. The trial court granted the City’s motion for summary judgment and Nealy appealed. The Court of Appeal affirmed, holding that Nealy was unable to perform his solid-waste equipment operator job regardless of the City’s accommodation.
A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires. The Court of Appeal confirmed that FEHA does not obligate the employer to accommodate the employee by excusing him from performance of essential functions. The Court further held that because heavy lifting was an essential function of a solid-waste equipment operator and Nealy was absolutely precluded from heavy lifting by his doctor, Nealy could not perform the essential duties even with reasonable accommodations. Any accommodation would require eliminating the essential job functions.
The Court further noted that FEHA requires the employer to offer the employee “comparable” or “lower graded” vacant positions for which he or she is qualified, but does not require a reassignment if there is no vacant position for which the employee is qualified. Here, Nealy was not qualified for any comparable or lower grade position. Accordingly, the City did not fail to reasonably accommodate Nealy.
This decision reminds employers that while they are required to engage in the interactive process and reasonably accommodate an employee with a disability, an employer is not required to eliminate an essential job function or create a new position in order to accommodate.
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