In Department of Fair Employment and Housing v. Lucent Technologies, Inc., the federal Ninth Circuit Court of Appeals upheld an employee termination after a one-year disability accommodation leave.
The plaintiff employee's job as an installer required frequent heavy lifting of up to fifty pounds. The employee injured his back and could no longer lift heavy weights. Lucent's policy provided that if an employee could not return to work within one year, the employee would be terminated, absent a doctor's opinion that the employee would be healed in six months. The employee took leave under the policy.
While the employee was on leave, his doctors constantly revised his status, but the employee was never fully cleared to return. Lucent kept in contact with the employee, consistently evaluated the new restrictions, and continued to accommodate the employee, providing him with the one year of leave. When the employee finally returned upon expiration of the leave, his doctor had cleared him to occasionally lift weights of twenty to fifty pounds. Lucent terminated him. Two months after the employee was terminated, his doctor finally cleared him to lift fifty pounds. The employee sued Lucent for disability discrimination and related claims. The District Court ruled in favor of Lucent, and the employee appealed to the Ninth Circuit.
The Ninth Circuit found that Lucent maintained contact with the employee, and the employee never brought up proposed accommodations other than continued leave. Thus, Lucent did not unlawfully "fail to interact" with the employee to determine reasonable accommodation. In addition, Lucent repeatedly considered, during the leave, whether the employee could perform given his restrictions, or be placed in another position. Lucent was not required to do more, such as modifying the installer position or extending leave indefinitely.
During the employee's leave, Lucent created a form showing that installers had to occasionally lift 100 pounds. But because the employee could not meet the lower fifty pound requirement, the 100 pound requirement was never an issue, so the Ninth Circuit considered the form irrelevant. In addition, because the employee was only cleared to occasionally lift fifty pounds, while his job required frequent lifting of such weight, Lucent had a lawful reason for termination. Finally, although Lucent had a "100% healed" policy, this policy alone did not render the termination unlawful, because Lucent made an individualized assessment of the employee's disability.
This is a rare victory for a California employer in a disability leave case. Some lessons to be learned:
- Consider all options for accommodation. Employers, however, do not need to exempt an employee from performing essential functions of the position, or reallocate those functions to other employees.
- Indefinite leaves of absence are not required under disability law. But California workers' compensation law has a different standard, so consult an attorney prior to terminating any disabled employee.
- If an employee does not participate in discussions about accommodations, the employer can take the position that it has met its burden to engage in the interactive process.
- Frequent communication with employees during a leave of absence is critical.
- If an employee provides updated information about disability status, evaluate the information and let the employee know whether, and to what extent, such information impacts accommodation.
- Document the entire accommodation process, including all communications, in case a legal challenge is brought.
