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Disability Management: A proactive method to avoid civil litigation         By Robert Palow J.D. and Dennis Lindsey, Ph.D. The need for a proactive approach in the development of disability management within today's corporate America has been evolving over the past few years. Case law has eroded the common philosophy "if they are injured on the job terminate them". This continued practice could open the doors for extensive litigation cost and the assessment of unlimited damages awarded by a jury. Pettus vs. Cole, A 1996 case, exposed the employer to liability when dealing with persons with a disability and their right to privacy. In that case a company used psychiatric reports to require the claimant to complete an alcohol treatment program as a condition of return to work. He refused and was terminated. He subsequently sued the company and the doctors for improperly releasing medical information, breach of contract, wrongful termination and invasion of privacy. The appellate court concluded that the doctors had violated the California Confidentiality of Medical Information Act by providing a detailed report, which went beyond the essential job functions without authorization. The case emphasizes the rather obvious need to obtain a signed release of information in addition to an employer's responsibility clearly defining that and only that information, which is relevant to an individual's ability to perform their specific job. In 1997, Mendez v. Gearan, the importance of an employee's work functions was further emphasized by a federal case against the Peace Corps. The court determined that the Peace Corps had made no effort to examine whether a reasonable accommodation would have protected Ms. Mendez from the potential harm the Peace Corps claimed would have befallen her had she been allowed to continue with her assignment. The Peace Corps had failed to meet its duty to thoroughly investigate the likelihood of substantial harm to Ms. Mendez if she were placed in a position overseas. In the most recent case, City of Moorpark vs. Superior Court, August 1998, The California Supreme Court overturned 16 years of jurisprudence by giving employees the right to recover damages under workers' compensation and claim disability discrimination under the Fair Employment and Housing Act (FEHA). The case may now force employers to defend the termination of a disabled worker in civil court. Exposure liability, which had previously been subsumed under the exclusive remedy of the Workers' Compensation section 132a, has now been expanded. The court declared that "Disability discrimination is indistinguishable in many ways from race and sex discrimination". If a disability affects a worker's ability to perform a job, the employer may provide a reasonable accommodation. If such an accommodation would make it possible for the employee to perform the job effectively and the company terminates the worker anyway, then that "discrimination based on disability, like sex and age discrimination violates a substantial and fundamental public policy". The employee who is fired because of a disability can now pursue discrimination claims in trial court. Although employees may not recover three times for the same injury, employers may have to defend themselves against three different claims. For a Labor Code Section 132a violation, for which the employer must pay the defense costs. For a violation of FEHA, which prohibits discrimination on the basis of disability; and For wrongful discharge claim in violation of public policy prohibiting discrimination on the basis of disability. As you can see employers must now be very careful when they consider terminating any employee with a work-related Disability. If a wrongful discharge suit is brought, unlimited punitive damages are available. All three of these cases could have been avoided and numerous other potential claims can be avoided if employers would take a proactive approach in the development of a good disability management plan in their company. Disability management is usually thought of as a postori type of intervention. The term disability management usually brings to mind some kind of formal rehabilitation and/or case management. Most people, even professionals, think disability management is something that happens after an injury. But this is a restricted vision. Disability management is a documented and implemented a priori organization wide plan for how the company (and all of its agents) is going to treat and deal with employees with disabilities. Without a considered and legally engineered approach, even well meaning companies are now going to be susceptible to potentially huge jury awards for emotional distress and punitive damages. Especially with higher paid workers, the exclusive remedy of Workers' Compensation no longer protects corporate misbehavior. Civil juries are much more likely to judge that a person has been terminated because of a disability rather than what had previously been a clearly restricted question of determined retaliation. The exposure companies now have for treating their workers poorly simply because they were injured on the job has been exponentially increased. Considering, that employees have more rights than they realize, these kinds of case are going far more familiar in the future. In a recent Maryland case the skin disease Pseudofolliculits Barbae was ruled a protected disability because it impaired the individual's ability to socialize, which is considered a major life activity. Individual's with a qualified mental disability, even that which is reactive to an initial physical injury are clearly protected under the law. The troubles that California employers had in the late 80's and early 90's with "stress" claims may be coming on again only under a different legal guise, and a different, much more expensive venue. Experts in disability management, case management, ergonomics and rehabilitation are going to be in great demand. OCTLA Gavel / Spring 1999 Copyright © 1999 RP Consultants All rights reserved [ Home | Company Info | Published Articles | Services | Feedback ]