Some people may be unsure about how the courts determine the following:
- Whether an employer is being fair in making a reasonable accommodation, and
- What the difference is between being unemployed and dismissed.
To help address these questions we will refer to the recent appellant court decision in the case of Mooney vs. County of Orange, published in January 2013, as a basis scenario.
INJURED ON THE JOB, REASONABLE ACCOMMODATION REQUESTED
Valerie Mooney was hired in November 1990, as deputy probation officer. Mooney suffered a spinal injury at work in June 2004, while she was performing her duties. She took medical leave for two months to treat and recover from those injuries. When she returned to work in September 2004, in her same employment position, she aggravated the injury and took two additional months of medical leave.
After her leave, she returned to her position and worked without restrictions.
From March 2005 to May 2006, Mooney was restricted to work no more than 40 hours per week. In May, Orange County (the employer) advised Mooney that they could no longer accommodate her work restrictions and that she was not cleared to work as of May 2006. However, she was not fired.
Upon learning the county’s position, Mooney requested an immediate ADA meeting (as required under the American Disabilities Act of 1990) in June 2006. As a result of the meeting, Mooney was assigned to clerical duties in July 2006 as a result of the meeting. In October 2006, Mooney was examined by a doctor from the Workers’ Compensation Orthopaedic Agreed Medical Examiner. Mooney was found to be “precluded from heavy lifting and repeated bending or stooping.” She was still able to undertake all other tasks. Thus, a notice of permanent work restrictions was sent to the employer.
On the January 4, 2007, the county informed Mooney that they could not accommodate her permanent work restrictions within her classified job position. She was told not to return to work until a final decision was made to accommodate her permanent work restrictions by Executive Management.
Orange County then made further efforts to assist with Mooney’s re-employment, including:
- Periodic ADA meetings with Mooney
- Requesting assistance from the “HR Leadership Forum” on behalf of Mooney so that all of the County’s agencies could view Mooney’s qualifications for job opportunities
Despite these efforts, though, Mooney was only considered for one position, for which she ultimately was not selected.
Mooney remained unemployed after 12 months, so she applied for disability retirement in May 2007, through the Orange County Employees Retirement System (OCERS). She continued to attend meetings for a reasonable accommodation of her employment. Four months later, Mooney stated that she was unwilling to take a position that would not allow her to keep her sworn status and safety retirement benefits.
Eight months after the application lodged with OCERS, Mooney was informed that she was ineligible for retirement as she was not deemed permanently incapacitated by the doctor, and no other proof had been lodged. Mooney appealed the decision of which was also denied. Interactive meetings continued until December 2009, at which time the employer advised that it did not make economic sense to accommodate Mooney. At the same time, though, the employer acknowledged that in the past employees in similar circumstances had been accommodated.
The following month, the county offered Mooney a job “within her work restrictions”. However, Mooney rejected the offer as “it did not pay as much and did not provide safety retirement benefits.” There was a further interactive meeting in April 2010, and again the employer requested the assistance of the HR Leadership Forum, on behalf of Mooney, so that she could be considered for other employment positions.
Mooney was offered another job in August 2010, which she also rejected for the same reasons. Still on disability leave in June 2011, she filed a response opposing the employer’s application to the courts for assistance to resolve the issue. She never looked for another job and never attempted to receive unemployment benefits. And ultimately, the trial court ruled in favor of the employer.
Mooney appealed the decision in the belief that the court was wrong in its interpretation of “dismissal” and “separation”.
APPELLATE COURT FINDS COUNTY’S ACCOMMODATION TO BE REASONABLE
With Mooney never being legally dismissed or separated because of her disability, the appellate court found that the employer had not done anything wrong. It could be said that the employer had, in the courts eyes, been extremely accommodating and reasonable by continuously making efforts to accommodate Mooney’s disability with further employment opportunities.
Although it may seem unfair that Mooney is not entitled to her employment position or benefits, the appellant court explained that there is no law to enforce Mooney’s claim of “equitable relief of reinstatement.”
THIS IS WHAT REASONABLE ACCOMMODATIONS LOOK LIKE
Responding to the initial questions about reasonable accommodations and possible concerns plaintiffs might face, it is important to note, based on Mooney vs. the County of Orange, that:
The employer’s attempt is considered reasonable if they attempt to accommodate an employee injured at work with any alternate employment within their work restrictions; and
An employee is not deemed “dismissed” or “separated”, according to the law, if the employer is attempting to provide an employee with an alternate job – irrespective of the employee’s physical and financial loss associated with the circumstances and offered position.