Light Duty, Lawsuits & Officer Safety

1. Light Duty, Lawsuits & Officer Safety Matt Dolan Attorney Public Agency Training Council

2. Unmanaged Light Duty as a Safety Issue

3. Chief, union: Firefighters’ ‘light duty’ hurts city “All firefighters we have are valuable to our operation, and we get injured and we need this system in place to rehab them and get them back into regular duty,” Paxton said. “If they are no longer able to work, we need to have a mechanism in place that points them toward a disability retirement.” By Lucas Sullivan The Columbus Dispatch Sunday February 3, 2013 11:26 AM

6. New Orleans Inspector General Findings • N.O.P.D. has one of the highest staffing levels in the country (top 7 among cities with 250,000 + in populations) • Only 21% of sworn officers are assigned to patrol

7. Where are all the cops? • What happens to the cops left working patrol?  Officer Safety Issue

8. Primary Sources of Liability re: Light Duty • Lack of a formal policy leading to the appearance of unequal treatment (most fundamental) • Disability Discrimination. • Pregnancy Discrimination.

9. Summary Judgment • Standard: Summary judgment is appropriate if the record shows that there is “no genuine issue as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). • Without compelling documentation, conflicting stories go to the finder of fact. • If it’s not in writing, it didn’t happen. • Agency Motions for Summary Judgment tend to be unsuccessful where there is the appearanceof unlawful discrimination.

10. Lack of a Light Duty Policy • Anti-discrimination statutes require equal treatment, whereby qualified individuals are not discriminated against based on pregnancy, disability, age, etc. • Failure to clearly communicate eligibility and longevity of light duty can lead to the appearance of discrimination. • Make clear policy and then stick to it.

11. Resetting the Clock on Light Duty Policy As of May 1, 2015 the ______ Department’s policy with regard to light duty assignments shall be __________. Although the department has addressed requests for light duty assignments in the past in a different manner, this past treatment will have no bearing on the manner in which such requests will be addressed moving forward. • Effectively communicate policy changes to employees (in-service training, etc.)

12. Americans With Disabilities Act(1990) • Prohibits employers from: (1) discriminating against (2) a disabled individual (3) who is otherwise qualified for the position (4) because of that individual’s disability. • Duty not to discriminate requires employer to make (1) a reasonable accommodation to the individual’s disability (2) that does not impose an undue hardship upon the employer. • A disabled individual is otherwise qualified if: (1) can perform the essential job functions (2) with or without the assistance of a reasonable accommodation.

13. Light Duty Policies and Essential Job Functions • Unending light duty assignments set precedent. • Waiver of an essential job function in one instance  inference that the function is not essential in another instance. • Must be applied equally to work impairments that are pregnancy-related.

14. Legally Defensible Job Requirements • Is this requirement truly necessary to successful service in this position? • “To determine whether a job function is essential, we consider a number of factors, including the employer's judgment, written job descriptions, the amount of time spent on the function, the consequences of not requiring the function, and the work experiences of those performing the job.” SeeDoner v. City of Rockford, 77 Fed. Appx. 898 (7th Cir. 2003)

15. Stone v. City of Mount Vernon • P firefighter suffered non-work-related accident, rendering him a paraplegic. • When P asked to be assigned to a permanent light duty position to accommodate his disability, D refused. • District court dismissed P’s suit on summary judgment, holding that no rational trier of fact could find that P was able to perform the essential functions of a firefighting job. • On appeal, the court held that D had two existing light-duty sections, which did not require P to perform traditional fire-fighting duties. D had a past pattern of assigning injured firefighters to those bureaus, one for as long as 20 years. • 2nd Circuit: The cost of placing P on permanent light duty was not clearly an unreasonable accommodation as a matter of law. Motion for SJ denied. See Stone v. City of Mount Vernon, 118 F.3d 92 (2d Cir. 1997)

16. Waiver of an essential job function in one instance  inference that the function is not essential in another instance.

17. Pregnancy Discrimination • Title VII of the Civil Rights Act of 1964 prohibits discrimination, with respect to “terms, conditions or privileges of employment,” based on: • Race, • Color, • Religion, • Sex, and • National origin.

18. Pregnancy Discrimination Act of 1978 • Amended Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy. • “The terms ‘because of sex’ or ‘on the basis of sex’ include…because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work…” See 42 U.S.C. § 2000e(k)

19. Light Duty and Pregnancy • “Women affected by pregnancy…shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work…” See 42 U.S.C. § 2000e(k) • Inability to perform job functions stemming from any off-duty activities must be treated equally.

20. Larsen v. Twp. of Branchburg • Department adopted a no-light-duty policy—requiring all officers on active duty to be able to perform their normal job functions. • P seeks to have the Department treat pregnant women separately and grant them employment protection above and beyond that which is provided to all other officers, male or female. • Ct: Under the Department's present policy, neither the male or female officer would be allowed to work and would have to use their accumulated sick leave or take an unpaid leave of absence. • Ct: “[P] seeks to have pregnant women exempted from the no-light-duty policy, an otherwise gender-neutral policy. Because we conclude that the light-duty policy affects both male and female officers equally, we are satisfied that the policy, and its application, does not discriminate against pregnant female police officers.” See Larsen v. Twp. of Branchburg, 2007 N.J. Super. LEXIS 2808 (App. Div. 2007)

21. Tysinger v. Police Dept. of City of Zanesville • City had a policy prohibiting assignment of police officers to light duty positions. • “[a plaintiff] is required to demonstrate that another employee who was similar in her or his ability or inability to work received the benefits denied to her.” • 6th Circuit: Decision not to grant light duty assignment to P was as a result of “City's controlling and legitimate nondiscriminatory policy”. • D’s Motion for SJ Granted. See Tysingerv. Police Dept. of City of Zanesville, 463 F.3d 569(6th Cir. 2006)

22. Young v. UPS(4th Circuit) • P delivery driver was denied light duty work during pregnancy. • D policy allowed light duty for individuals: • injured on-the-job; • disabled under the ADA; or • had lost their Department of Transportation (DOT) Certifications • 4th Circuit: “By limiting accommodations to those employees injured on the job…UPS has crafted a pregnancy-blind policy…” • 4th Circuit: “We therefore adhere to the majority view that where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA.” See Young v. UPS, 2013 U.S. App. LEXIS 530 (4th Cir. 2013)

23. Young v. UPS(U.S. Supreme Court) • Supreme Court Vacated and Remanded the 4th Circuit decision • Ct: “Viewing the record in the light most favorable to Young, there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.”  Employees offered light duty for other disabilities and/or upon losing their DOT certification • Ct REJECTS the EEOC guidance that claims that different treatment due to the on-the-job nature of an injury is irrelevant and states an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries. (“Does it read the statute, for example, as embodying a most-favored-nation status? …Without further explanation, we cannot rely significantly on the EEOC’s determination.”) See Young v. UPS, Inc., 2015 U.S. LEXIS 2121 (U.S. 2015)

24. Light Duty policies must be applied equally to pregnancy-related and non-pregnancy related physical limitations.

25. Illinois Human Rights Act “For a public employer to refuse to temporarily transfer a pregnant female peace officer or pregnant female fire fighter to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated.” See 775 ILCS 5/2-102(H)

26. FMLA Considerations

27. What Does the FMLA Require? • The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. • Eligible employees are entitled to 12 workweeks of leave in a 12-month period for: • the birth of a child and to care for the newborn child within one year of birth; • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; • to care for the employee’s spouse, child, or parent who has a serious health condition; • a serious health condition that makes the employee unable to perform the essential functions of his or her job; • any qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a covered military member on “covered active duty”.

28. Defining Job-Protected Leave FMLA job-protected leave entitles employee to: “(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” See 29 USCS § 2614

31. Can Awareness of Legal Liability Risks Actually Make the Agency Better?

32. Disclaimer • Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This presentation is not intended to constitute legal advice on a specific case.

33. Thank You! Matt Dolan Attorney Public Agency Training Council 800-365-0119 mdolan@patc.com

34. Upcoming In-Class Training Supervisor Liability Wall, NJ 4/22 & 4/23 Redmond, WA 5/11 & 5/12 Supervising the Toxic Officer Redmond, WA 5/13 & 5/14 Murfreesboro, TN 5/20 & 5/21 http://www.patc.com/training/schedule.php

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