Decision: The California Court of Appeal, in Nealy v. City of Santa Monica, held that an employer did not violate the California Fair Employment and Housing Act (FEHA) by denying an injured employee the right to return to work where the employee was unable to perform essential functions of his job and lacked qualifications for other positions despite efforts to accommodate him. The plaintiff, Nealy, a former solid-waste equipment operator for the City of Santa Monica, became disabled following a work-related injury. Subject to certain work restrictions, Nealy wanted to return to his position. The City, however, found that it could not reasonably accommodate Nealy in his old position due to his significant restrictions. Nealy then applied for another position, but was denied because he lacked the requisite experience. The City ultimately advised Nealy that it was unable to provide him with reasonable accommodation because he was not minimally qualified for the only position available that was not a promotion. Nealy sued the City, alleging, inter alia, that the City failed to provide reasonable accommodation in violation of FEHA.

The trial court granted summary judgment for the City, holding that Nealy could not perform the essential functions of his previous position—with or without accommodation—and rejecting Nealy’s argument that the City was required to restructure his old position to accommodate him. The Appellate Court affirmed, holding that “elimination of an essential function is not a reasonable accommodation.” Indeed, the inability of an employee “to perform even one essential function” is enough for the employer to move on to other alternatives, such as reassignment. And FEHA does not require reassignment “if there is no vacant position for which the employee is qualified.” Nor does FEHA require the employer to “promote the employee or create a new position for the employee to a greater extent than it would create a new position for any employee, regardless of disability.” The Court of Appeal also disagreed with Nealy’s claim that the City was required to wait for a vacant position to open up, holding that “a finite leave of absence may be a reasonable accommodation to allow an employee time to recover, but FEHA does not require the employer to provide an indefinite leave of absence to await possible future vacancies.”

Impact: The decision reaffirms how important it is for employers to engage in a well-documented and meaningful interactive process with employees. While the interactive process is often frustrating and burdensome, it is critical not to rush it. The employer should have documented discussions with the employee regarding his or her restrictions, any accommodations the employee believes would work, and whether and why the employer agrees or disagrees with the employee’s accommodation suggestions. If a comparable or lower-grade position exists, the employer should conduct a documented evaluation of whether the employee is qualified for the vacant position and should document the process of interaction.