Employer Is Not Required To Make A Temporary Position Permanent When An Employee’s Temporary Disability Becomes Permanent

In Raine v. City of Burbank (06 Cal. Daily Op. Serv. 704, Cal.App. 2 Dist., Jan. 25, 2006), a California Court of Appeal considered whether a city police department was required to convert a temporary position, intended to accommodate an officer recovering from a disability, into a permanent position when it learned the officer’s disability was permanent.

The court ruled that the Fair Employment and Housing Act (FEHA) requires an employer to make “reasonable accommodation” to allow disabled employees to keep working. But that accommodation does not require creating a new position or making a temporary one permanent, the Court said.

Facts

Mark Raine was an officer for the City of Burbank (“City”) police department (“Department”), whose duties included street patrol and school campus patrol. In 1995, he injured his knee, leaving him unable to perform many of the essential duties of a patrol officer. The Department reassigned him to a temporary light-duty front desk position to accommodate him while his injury healed. Raine held that position for six years, until his physician advised the Department that his disability was permanent and he would never be able to perform the essential duties of a patrol officer.

The Department told Raine it had no position available for a sworn peace officer with his physical limitations, and that it would therefore remove him from his temporary position and consider him retired.

Raine sued, alleging disability discrimination in violation of FEHA. The City moved for summary judgment, claiming that the front desk position is reserved for officers recovering from temporary disabilities, as well as lower-paid civilian police “technicians.” The trial court agreed with the City, concluding that Raine was not a qualified person with a disability under FEHA because he was unable to perform the essential job functions of a sworn patrol officer. Raine appealed.

Decision

The appellate court found that case law has consistently concluded that employers need not create new positions for disabled workers in order to reasonably accommodate them.

“Raine was certainly entitled to a reasonable accommodation, which would have included job reassignment if a vacant position existed; the City, however, was not required to create a new position of front desk officer—a position indisputably reserved for civilians on a permanent basis or as a temporary light-duty assignment for police officers,” the court said.

The City correctly observed, the Court ruled, that employers would be dissuaded from creating positions to accommodate temporarily disabled workers if they could be forced to maintain those positions indefinitely. Doing so for Raine would have required the creation of a new sworn-officer position of “front desk officer.” Therefore, he was not entitled to have his temporary position made permanent. The trial court’s judgment was affirmed.

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