ALL PEACE OFFICERS NEED TO BE ABLE TO PERFORM EMERGENCY FIELD DUTIES
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.
Lui, a 24 year veteran officer, 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.”
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 under California’s Fair Employment and Housing Act (FEHA), Gov Code sections 12900-12996, alleging multiple violations of FEHA, including discrimination and failure to accommodate.
Temporary Modified Duty
Pursuant to an agreement with the San Francisco POA, Department General Order (DGO) 11.12 was implemented in March 2004, which eliminated permanent light-duty assignments for officers injured after March 2004 and limited TMD assignments to one year. Prior to March 2004, the Department assigned disabled officers to permanent light duty assignments.
When an officer is in a light duty assignment, he/she is unavailable for deployment in response to emergencies. In 2003, San Francisco PD had 210 officers in such assignments — approximately 10% of the Department’s sworn personnel. The purpose of DGO 11.12 was to decrease the number of officers in permanent light duty assignments and, by 2010, the number of such officers was down to 45.
In accordance with the agreed upon DGO, 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.”
It is important to note that, if an agency agrees to the creation of permanent light duty assignments, it may find itself in a totally different position than in the instant case. InCuiellette v. City of Los Angeles, (2011) 194 Cal. App. 4th 757, the court found that “[b]ecause the LAPD maintained permanent, 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.”
Essential Functions of the Job
The 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 court noted that in the FEHA, 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 court also held that “it is clear that plaintiff bore the burden of proving that he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation).”
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. 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.” The court then sets forth several examples where situations called for deployment of, virtually, all sworn members of the Department.
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.”
Reasonable Accommodation
Both FEHA and the Americans with Disabilities Act (ADA) require that an employer “make reasonable accommodation for the known physical or mental disability of an … employee.” However, the FEHA, as stated in Gov Code section 12940, “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, however, 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 important to note 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.”
HOW THIS AFFECTS YOUR AGENCYThe idea behind the FEHA and ADA is to enable persons with disabilities, who are able to perform the essential functions of the job they seek, with or without reasonable accommodations, to secure and/or maintain employment. The fact that one has or had a disability, or is perceived of as having a disability, cannot preclude that person from gainful employment, so long as he/she is able to perform the essential functions of the job.
As such, it is imperative that employers, including public safety employers, articulate the essential functions of a job. As the court noted, under the FEHA, criteria are set forth in Gov. Code section 12926(f)(2), which are used to determine what functions are essential to any job. It is also crucial that, if the criteria are applied to some peace officers, they should be applied to all officers, regardless of their assignment.
“Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position.” A marginal function is one which is relatively incidental to the reason for the job’s existence.
The court also points out that “usually, no one listed factor will be dispositive….” For example, “where other considerations support a finding that a function is essential, the function ‘need not encompass the majority of an employee’s time, or even a significant quantity of time, to be essential.'”
In addition to articulating the essential functions of a job, agencies must understand that there are procedures which must, thereafter, be followed. For example, a request for an accommodation by an employee need not be in writing, but it must be clearly communicated to the employer. Once put on notice, however, the agency can require the request be written, in order to ensure that the employer understands what accommodation is being requested and why.
The employer must then engage in an interactive process with the employee. That involves having a dialogue with the person requesting an accommodation. The individual needs to articulate the disability which necessitates a change and that enables both parties to work together in an effort to develop a reasonable accommodation, if one exists.
An employer is not obligated to provide the accommodation requested by the employee if another accommodation is available and offered. If there is no reasonable accommodation available, which would enable the employee to continue in his/her present position, the employer must be willing to review all jobs within the city or county, which the employee would be capable of performing. [In the Lui case, that opportunity was offered to him but he declined to consider positions other than police officer.]
Finally, there is no obligation to create a permanent light duty assignment as an accommodation. “Defendant was not obligated to make plaintiff’s TMD assignment permanent, or to convert a different administrative position into a permanent light-duty position exempt from the duties in the EJF List.”
And the court, in referring to Cuiellette v. City of Los Angeles, the LAPD case set forth above, states that “Cuiellette supports the proposition that employers must provide accommodations into permanent light-duty assignments if such assignments exist; Cuiellettedoes not support the proposition that employers are required to create permanent light-duty assignments to accommodate disabled employees.” (Emphasis added.)
This is a very complex area of the law and consultation with your agency’s legal advisor is imperative before taking any action involving the issues set forth in this case. As always, if you wish to discuss the case in greater detail, please don’t hesitate to contact me at (714) 446-1400 or via email at mjm@iones-mayer.com.
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