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Disability Pitfalls for Employers

A recent decision from the California Court of Appeal in San Francisco demonstrates how hard employers must work to avoid liability under the disability discrimination laws. The Court ruled that the plaintiff employee was entitled to a trial on her disability claims because there was some evidence that the employer had not tried hard enough to accommodate her disability. Nadaf-Rahrov v. Neiman Marcus Group, Inc., Case No. A114016 (Cal. Ct. App. 9/10/2008).

Facts

Forough Nadaf-Rahrov was a clothes fitter for Neiman Marcus. She developed carpal tunnel syndrome in both hands and osteoarthritis in her fingers. Her doctor certified that she was unable to perform work of any kind, and she went out on Family and Medical Leave Act leave. After she exhausted her FMLA entitlement, Neiman Marcus extended her leave, and asked her to call when she was released to return to work. That would permit Neiman Marcus could look for alternative vacant positions in the San Francisco store where she worked.

On June 28, 2004, Nadaf-Rahrov’s doctor wrote that she “may be able to return to work on 8/19/04 but not in her previous position.” On July 14, 2004, Neiman Marcus terminated her employment. The human resources manager noted that Nadaf-Rahrov did not have a release from her doctor to perform work of any kind, and believed that the employee’s condition was unlikely to change in the near future.

Analysis

The trial court granted summary judgment dismissing Nadaf-Rahrov’s claims for (1) disability discrimination, (2) failure to accommodate and (3) failure to engage in an interactive process, but the Court of Appeal reversed.

1. The disability discrimination laws prohibit an employer from discharging a disabled employee who is able to perform the essential functions of her existing position, or of any vacant position for which she is qualified. There was a disputed issue of fact because the employee’s doctor said his initial certification only meant that she could not do her existing job, and was not meant to foreclose all work. There was evidence of vacant positions that only required office work.

2. With respect to accommodation, the Court adopted the federal rule that Nadaf-Rahrov had the burden of proving that she could perform the essential functions of an available job with accommodation. It disagreed with a contrary rule adopted in Bagatti v. Department of Rehabilitation, 97 Cal. App. 4th 344 (2002).

3. The Court also adopted the federal rule on the interactive process claim, which requires the employee to prove that the employer did not interact in good faith and that a reasonable accommodation was available. There was evidence from which a jury could conclude that Neiman Marcus caused a breakdown in the interactive process by refusing to provide information about available positions that might have assisted Nadaf-Rahrov in preparing a list of her work-related medical restrictions.

What The Case Means For Employers

This case highlights the importance of care and precise documentation when dealing with disability issues. Employers should

1. Make sure that there is an up-to-date written job description for every position.

2. When an employee says that a physical or mental condition is making it difficult to perform his or her job, provide as much information as possible about vacant positions.

3. Insist on precise medical opinion about the employee’s ability to perform the essential functions of vacant positions.

4. Rather than discharge an employee who has been out on medical leave for an extended period of time, let the employee remain in a leave status, and address the issue of whether there is a job available when a doctor certifies the employee’s ability to return to work.