The California Department of Fair Employment and Housing (“DFEH”) recently obtained a settlement on behalf of a custodian for a school district who was fired after an on-the-job injury.  As part of the settlement, the employer agreed to pay $290,000 and offer reinstatement with reasonable accommodations.

During an investigation by the DFEH, the district told the DFEH that it relies on a test of physical capabilities to determine if a person is able to perform custodial duties.  Anyone taking the test must be able to exert “maximal force.”  Because the custodian had a lifting restriction that prevented him from being able to exert “maximal force,” he was not considered eligible to take the test.

DFEH Director Kevin Kish stated: “The testing requirements in this case meant, in practical terms, that the employee had to be 100% healed from an injury before he would be permitted to take a test for a job he was already successfully performing.  That doesn’t make sense.  Policies requiring employees to be ‘100% healed from injury’ in order to work deny employees their right to an individual assessment and violate the FEHA.”

This settlement is a reminder to employers that when an employee seeks an accommodation for his or her disability, the employer must determine whether that employee can perform the duties of the job, with or without an accommodation.  Employers should review their accommodation policies to ensure that such policies do not have the unintended consequence of requiring employees to be fully healed in order to work.