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Workplace disability headaches? Here’s a prescription.

June 17, 2011

According to a highly scientific online poll I saw this morning on Twitter (thanks, @manpowerblawg), employers find health and disability issues to be by far the biggest employment law headache.  So I thought I’d take a moment to discuss a recent disability case that shows employers how to handle these cases with the minimum of pain.

The case is DFEH v. Lucent Technologies.  Steven Carauddo was a long time telecommunications installer for Lucent.  His duties consisted mostly of physical activities including running cable, drilling holes, setting frames, and wiring cell cabinets filled with electronic components.  Not surprisingly, he was frequently required to lift and maneuver various items often weighing over thirty pounds to do his job.  He was injured in 2005, and as a result could not climb, reach above shoulder level, or lift anything over twenty pounds. Because those limitations prevented him from doing his job, he was given a leave of absence from work.

Under Lucent’s policy, injured or disabled employees can get up a year’s leave, and then are terminated — unless they apply for an additional six month leave and show a prognosis for a full recovery within that time frame.  The policy also required communication with Lucent’s health department during the disability period.  Lucent’s nurse contacted Carauddo and his medical providers repeatedly during the year of his leave, and was repeatedly told he could not perform (at least) the climbing and lifting functions of his job.  As the one-year expiration of his leave approached, Carauddo reported to work, but was informed by his supervisor that he could not return to active duty without approval by Lucent’s Medical Department.

When the year came and went, Lucent sent a letter informing him that his disability period had expired and that his employment was terminated.  Even so, Lucent continued for a couple of weeks after the year expired to talk with Carauddo and his doctors about his abilities and whether he could return to work in some fashion.  He wasn’t cleared to work without restrictions until two months after his termination.

The Ninth Circuit affirmed summary judgment in Lucent’s favor.  The court held that the process by which Lucent kept in touch with Carauddo and his doctors, and continued to evaluate his condition and potential accommodations, satisfied its obligation to participate in the interactive process.  In fact, the court stated that Carauddo failed to participate in that process, stating “during Carauddo’s disability period, he was in contact with at least two Lucent employees . . . yet failed to bring to Lucent’s attention any possible accommodations that it had not considered.  Any failure to interact adequately, therefore, was caused by Carauddo and, as a result, Lucent cannot be held liable.”

The court also held that Lucent had provided Carauddo the legally required accommodation.  As the court noted:

When Carauddo was no longer physically able to perform [his essential job] functions, Lucent’s plan afforded him a disability period to rehabilitate.  During this time, Lucent repeatedly considered whether Carauddo could perform the tasks of an installer given his physical restrictions or alternatively be placed in another position, but it determined that he could not.  Lucent was not required to do more under California law, such as modifying the installer position or extending the disability period indefinitely.

So, employers, make sure you follow Lucent’s lessons.

  • Talk to your disabled employees about their conditions and abilities, and document those talks.
  • Do an individual analysis of each accommodation idea, whether it’s yours or the employee’s.
  • Don’t rely overly much on standard policies (note how Lucent kept working with Carauddo after his year was up).
  • Don’t consider accommodations that modify the position or the essential functions of the job, and don’t create a new job.
  • Leaves of absence are legitimate accommodations, but they don’t have to be forever.  The point is to get the employee healthy and get him or her back to work — if there’s reason to believe the leave will do that, offer it, and follow up on progress.
  • Do offer another position if it is available and if the employee can do it.

Employees, there’s a lesson in here for you, too:  Make sure you personally participate in the discussions with your employer about accommodations and abilities.  Any requests you have for accommodations need to be made in those discussions or you may not be able to make them at all.

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