Disability: What’s reasonable accommodation at work?      

Rosario Contreras-Velazquez worked for Family Health in its medical records department when she suffered a work-related repetitive strain injury to her right upper extremity. After surgery, she developed complex regional pain syndrome. She also suffered from a frozen shoulder, as well as inflammation in her right hand, which prevented her from being able to fully extend her fingers.

Her doctor imposed various work restrictions, some of which the employer accommodated with temporary light duty work. Velazquez obtained an entry-level appointment technician position in Family Health’s call center. Although the position required repetitive hand use to operate its computer system, Family Health believed Velazquez could perform the duties of the position using a computer mouse with her left hand.

After a week and a half in the position, Velazquez’s condition worsened. She asked her supervisor for a roller mouse. A roller mouse was provided but it was defective. Her supervisor said she would try to get a replacement, but Velazquez never received one.  Meanwhile, her doctor prepared a report indicating Velazquez complained of pain on both sides, but indicated she could return to modified work with restrictions regarding the use of her upper right extremity and right hand.

When Human Resources reviewed Velazquez’s work restrictions, it interpreted the restrictions to apply to both hands. Human Resources informed Velazquez there were no available positions compatible with her work restrictions. Human Resources suggested that the employee go online and review available openings to see if any would be compatible with the work restrictions. At that point, Human Resources considered the interactive process to be over and recommended that Velazquez be terminated.

Velazquez sued the employer for disability discrimination, failure to accommodate, and failure to engage in the interactive process, among other things.

California law prohibits discrimination based on disability or medical condition. California law defines disability (whether mental or physical) as any disease, disorder, cosmetic disfigurement, anatomical loss, emotional or mental illness, or specific learning disabilities, which limits a major life activity. Working at a job is considered a major life activity.

The employer has a duty to provide reasonable accommodation to employees to enable them to work despite their disability.  Depending on the employee’s specific restrictions and the employer’s circumstances, the following are examples of reasonable accommodations:

1. Making facilities accessible to and usable by disabled individuals;
2. Job restructuring;
3. Offering part-time or modified work schedules;
4. Reassigning to a vacant position;
5. Acquiring or modifying equipment or devices;
6. Adjusting or modifying examinations, training materials or policies;
7. Providing qualified readers or interpreters

In Velazquez’s case, the employer could have provided a left hand work station, with a roller mouse, or restricted her job duties, or re-assigned her to a vacant position. Even if the employee can no longer perform her job duties, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job.

The employer also has the duty to find and offer suitable jobs for the employee. Simply telling the disabled employee to check available job postings in the company is not enough. The employer must in good faith determine whether a disabled employee can be transferred or reassigned to a vacant position. The employer is in a better position to know what jobs are vacant or may become vacant.

After 8 days of trial, a jury found that the employer failed to engage in interactive process and failed to accommodate Velazquez’s disability. They returned a verdict in favor of the employee, awarding her $5,915,645 in damages, which included $300,000 in future non-economic damages, $450,000 in past non-economic damages, and $5 million in punitive damages. The punitive damages award was reduced by the court to $1,831,290. This verdict is presently on appeal.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a Presidential Awardee for Outstanding Filipino Overseas in 2018.]