'100% Healed From Injury' Policies May Violate The CA Fair Employment And Housing Act

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...