By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 9: The Duty to Accommodate a Disability With Light Duty under State Law
This article is the 9th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the next two to three months, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 9th article in these newsletter series provides an overview and introduction to the rights of accommodation under disability laws. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
In the last article in this series we explore federal court decisions on the right of public safety employees to light duty. Because of the differences between the state and federal laws, there has been some uncertainty as to how state courts would approach the subject of permanent light duty jobs for employees, including public safety employees. There is now at least one Washington Court of Appeals decision which rejects an argument that there is a broader state disability discrimination law right for such an accommodation.
Using similar reasoning under state law, a Washington appeals court held in Dedman v. Personnel Appeals Board,[1] that there is no obligation of the State Department of Corrections to accommodate a state corrections officer who could not serve in all of the different correction functions in the prison. The court concluded that the “essential function” requirement was implicit in the state law as part of a reasonable accommodation test. It rejected the claim that the officer should be accommodated in positions with limited inmate contact, such as control room operator positions.
In Dedman, the court also found persuasive the employer’s argument it did not have an obligation to restructure the existing position description and that rotating the corrections officers through each various correction officer post served important operational interests. Consequently, it concluded, being able to make inmate contact was an “essential function” which could not be waived.
It remains unclear whether this will be the final resolution of the light duty question in Washington or the Ninth Circuit. The State Supreme Court will likely eventually have to resolve this question, but has not yet addressed this issue squarely.
It remains clear that there is an obligation for employers to accommodate individuals under the state disability law by providing them opportunities to acquire other employment within the employer’s workforce. The suggestion arising from the case law is that these employees are entitled to priority consideration before other employees. The courts have yet to clarify how those rights of accommodation will interface with civil service rules.
In the next article in this series, we’ll explore what rights employees have in connection with accommodation requests concerning their work schedules.
[1] 98 Wn. App. 471, 989 P.2d 1214 (1999).
