CSSA Magazine Article – What Are “Reasonable Accomodations” for a Peace Officer with a Disability?



By Martin J. Mayer, General Counsel

California State Sheriffs’ Association

California’s Fair Employment and Housing Act (FEHA), Gov. Code §12940 states, in part, that: “It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the . . .  medical condition . . . of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

Notwithstanding the language in Gov. Code 12940(a), on December 11, 2012, the California 1st District Court of Appeal held, in the case of Lui v. City and County of San Francisco, 2012 Cal. App. LEXIS 1248, that it may not be discriminatory to terminate a peace officer who cannot perform all the essential duties of an officer, even when the limitations are due to a disability or medical condition.

Lui was a 24 year veteran officer who suffered a major heart attack in 2005. After being off for 11 months on disability leave, he returned to work in a temporary modified duty (TMD) assignment. After completing the TMD, he asked for an administrative assignment but, because of his medical condition, he could not be deployed for field duty, even in response to emergencies. His doctor stated that “Mr. Lui may return to full duty as a police officer. However, because he has coronary artery heart disease, his responsibilities should not include physically strenuous work.” (Emphasis added.)

After the Department informed him there were no administrative positions available that did not require him to perform the strenuous physical duties, regularly performed by patrol officers in the field, he retired. He then sued the City, alleging multiple violations of FEHA including discrimination and failure to accommodate.

Reasonable Accommodation

As stated above, section 12940 specifically prohibits discriminating on the basis of a medical condition, however, it limits the reach of that prohibition.   The law excludes from coverage those persons who are not qualified, even with reasonable accommodations, to perform all of the essential functions of the job being sought.  But, both FEHA and the Americans with Disabilities Act (ADA) require that an employer attempt to “make reasonable accommodation for the known physical or mental disability of an … employee.”

However, FEHA, “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.”

It is necessary for the employer to engage the employee, who is claiming a need for accommodation, in interactive dialogue to determine if such an accommodation exists.  It is also important to note, though, that a reasonable accommodation does not mean changing or altering the essential functions of a job.

A reasonable accommodation is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.”  And, it is the plaintiff who bears the burden of proving that he or she has the “ability to perform the essential functions of a job with accommodation.”

Permanent vs. Light Duty Assignments

In March 2004, the City of San Francisco eliminated permanent light-duty assignments for officers injured after March 2004 and limited light duty assignments to no more than one year. Prior to March 2004, the Department assigned disabled officers to permanent light duty assignments.  Part of the new policy acknowledged that, when an officer was in a light duty assignment, he/she would not be available for deployment in response to emergencies.

However, the Lui court noted, when an “injured officer returns to full duty at the end of the TMD period, he must be able to perform the essential functions of the full duty police officer position, including physically strenuous tasks, even if assigned to an administrative position.  Those essential functions are described in the Department’s ‘Sworn Members Essential Job Functions’ list (EJF List). The list is comprised of 11 groupings of duties, some of which include physically strenuous tasks, such as making forcible arrests, pursuing fleeing suspects, and responding to emergency situations.”

A different outcome was seen in the case of Cuiellette v. City of Los Angeles, (2011) 194 Cal. App. 4th 757.  In Cuiellette, the court of appeal found that “[b]ecause the LAPD maintainedpermanent light-duty positions, that it staffed with police officers who could not perform all of the essential duties of a police officer, the relevant inquiry [was] whether [the] plaintiff was able to perform the essential duties of the light-duty assignment he was given on his return to work and not whether he was able to perform all of the essential duties of a police officer in general.”

The Cuiellette court found that “pursuant to longstanding policy and practice, the LAPD had a significant number of permanent light duty assignments in which it placed police officers who, because of medical restrictions, could not perform all of the essential duties of a police officer.  In this regard, LAPD Lieutenant Lutz testified that in 2002 and 2003, the LAPD employed about 8,500 sworn police officers, approximately 3,000 of whom worked with medical restrictions. Of the 3,000 police officers with medical restrictions, the LAPD employed about 250 officers in “permanent light duty positions that would not allow them to work the field.”

The court compared the circumstances in Cuiellette to those in the case of Raine v. City of Burbank, (2006) 135 Cal.App.4th 1215, where Raine, a Burbank police officer, was placed in a front-desk assignment, while he was attempting to recover from injuries. “There was no question [Raine] could perform those front-desk functions. Normally, that front-desk position was staffed with civilians, not police officers, although the position was also reserved as a temporary light-duty assignment for police officers recovering from injuries. The court ruled that the City of Burbank had no duty under the FEHA to make Raine’s temporary front-desk assignment permanent. The instant case is distinguishable from Raine because the LAPD did not at the time in issue restrict the placement of disabled officers into temporary light-duty jobs.”

Essential Functions of the Job

The Lui court stated that “the key issue on appeal is whether the record supports the trial court’s finding that the duties in the EJF List are essential functions of the administrative positions sought by plaintiff.” The court also held that “the FEHA establishes separate causes of action for a range of “unlawful employment practices,” including the three at issue in the present appeal: disability discrimination, failure to accommodate, and failure to engage in the good faith interactive process to determine a reasonable accommodation.”

The Lui court noted that in Gov. Code section 12926(f)(2), it is stated that “Evidence of whether a particular function is essential includes, but is not limited to, the following: (A) The employer’s judgment as to which functions are essential. (B) Written job descriptions prepared before advertising or interviewing applicants for the job. (C) The amount of time spent on the job performing the function. (D) The consequences of not requiring the incumbent to perform the function. (E) The terms of a collective bargaining agreement. (F) The work experiences of past incumbents in the job. (G) The current work experience of incumbents in similar jobs.”

The Department argued that “the reason police officers exist is to enforce the law and protect public safety. Therefore, all police officers must be able to engage in the strenuous tasks in the EJF List, which relate to the apprehension of criminals and the protection of public safety.”  The court noted that there “is no dispute the Department exists for the purpose of law enforcement and the protection of public safety. Similarly, it is undisputed most of the Department’s non-administrative police officer positions, such as patrol assignments, exist for the purpose of enforcing the law and protecting the public through the performance of the types of duties in the EJF List. However, those undisputed facts do not mean that all police officer positions exist for the purpose of performing those functions.”

Nonetheless, the court ruled, “the Department needs to be able to mobilize as many full duty police officers as possible to respond to mass celebrations, demonstrations, and earthquakes and other large-scale emergencies, during which the officers would be required to perform the types of duties listed in the EJF List.”

Ultimately, the court ruled that “even though officers in administrative positions are not frequently required to engage in [strenuous physical duties regularly performed by patrol officers in the field], the strenuous duties are essential functions of the positions because the Department has a legitimate need to be able to deploy officers in those [administrative] positions in the event of emergencies and other mass mobilizations.”


It is most appropriate, and not discriminatory, to require that anyone, including a peace officer, be able to perform all of the essential functions of his or her job.  One of the first places the EEOC or DFEH will look, to determine what are those functions, is the employer’s description of the job.  Therefore, articulating those job functions which are essential, as opposed to marginal, is very important and the employer must be able to justify those functions identified as essential.

It is also important that the employer be able to prove that all who fill those jobs are able to perform those essential job functions.  If, as in the Cuiellette case, exceptions are made, and employees are permitted to permanently perform light duty assignments, then the courts will evaluate what are essential functions of a job very differently.

In positions involving public safety, whether law enforcement or firefighting for example, it is imperative that the job functions not be modified and that all who fill those positions, regardless of the particular assignment being held, be able to perform the essential job functions when needed, as set forth in the Lui case.  To put it another way, one must be able to do the job when it is necessary to do the job.

Martin J. Mayer is a name partner with the public sector law firm, Jones & Mayer.  He focuses his practice on representing law enforcement agencies throughout the state.  He has served as General Counsel for the California State Sheriffs’ Association for more than twenty-five years.