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Tuesday, December 02, 2014

An employer is neither required to create a new light-duty position to accommodate a disability nor to assign an employee with more than a temporary disability to a light-duty program designed to accommodate a temporary disability


An employer is neither required to create a new light-duty position to accommodate a disability nor to assign an employee with more than a temporary disability to a light-duty program designed to accommodate a temporary disability*
Coles v New York State Div. of Human Rights, 2014 NY Slip Op 07788, Appellate Division, Fourth Department

Geraldine Colescommenced this proceeding pursuant to Executive Law §298 seeking to annul the determination of the Commissioner of the State Division of Human Rights [SDHR] that she failed to establish that her employer, the Erie County Sheriff's Office (ECSO), discriminated against her based on a disability.

Although initially the Division’s investigators found that Cole had alleged probable cause a Division Administrative Law Judge (ALJ) found that Coles did not establish that ECSO failed to provide her with reasonable accommodations for her disability.** The Commissioner of SDHR adopted the ALJ’s findings and recommendation and dismissed Coles complaint.  We now confirm the determination.

Confirming the Commissioner’s decision, the Appellate Division said that "[i]n reviewing the determination of SDHR's Commissioner, this Court may not substitute its judgment for that of the Commissioner . . . , and we must confirm the determination so long as it is based on substantial evidence."

ECSO did not dispute that Coles condition constituted a disability and Coles did not dispute that as a deputy sheriff assigned to the position of "inmate escort" at ECSO's correctional facility, her disability does not permit her to be assigned to duties involving direct inmate contact, i.e., duties that require uninterrupted vigilance and emergency response capability. Further, said the Appellate Division, Coles did not dispute the representation that she cannot perform the essential functions of an "inmate escort" without presenting a direct threat to her own safety and others in the workplace.

The accommodation Coles sought was for ECSO to assign her to a “light-duty position.”

The Appellate Division observed that “[i]t is well settled that an employer is neither required to create a new light-duty position to accommodate a disability … nor to assign an employee with more than a temporary disability to a position in a light-duty program designed to accommodate only temporary disabilities.

Noting that ECSO maintained a "light-duty" program,*** the court said that the purpose of that program is to assist employees with temporary disabilities by modifying work assignments and duties or arranging for a temporary transfer to a "Transitional Duty Assignment (TDA)" until the employee is medically released to resume his or her regular duties. Significantly, the Appellate Division said that “The fact that an employer has been lax in enforcing the temporary nature of its light-duty policy does not convert the policy into a permanent one,” explaining that the expressed intent of ECSO's policy “is not to create a permanent Transitional Duty Assignment, nor is [the policy] to be used in cases where an employee cannot perform the essential functions of a job with reasonable accommodation."

The Appellate Division concluded that there was no basis to disturb the Commissioner's determination that Coles’ disability was of a permanent nature and that ECSO had no permanent light-duty police assignments available. Thus, said the court, ECSO was not required under the Americans with Disabilities Act (42 USC §12101 et seq.) or the New York State Human Rights Law (Executive Law §296) to accommodate her disability by creating such a light duty position for her.

* See also County of Erie v New York State Div. of Human Rights, 2014 NY Slip Op 07829, Appellate Division, Fourth Department

** Executive Law §296(3)(b) requires employers to make reasonable accommodations to permit the employment of disabled employees, provided that the accommodations do not impose an undue hardship on the employer. A reasonable accommodation is defined as an action that permits an employee with a disability to perform the duties of his or her job position in a reasonable manner.

*** ECSO Policy # 03-01-07, Light Duty Assignments

The Doles decision is posted on the Internet at:

The County of Erie decision is posted on the Internet at:
 

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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