In Raine v. City of Burbank, a California Court of Appeal addressed the question of whether an employer who provides an employee a temporary, light-duty position for an extended period to accommodate the employee’s injury also bears an obligation under the Fair Employment and Housing Act (FEHA) to make that position available indefinitely after the employee’s temporary disability becomes permanent.

The court agreed with the decisions of federal circuit courts of appeals under the Americans with Disabilities Act (ADA). The court ruled that the duty to provide reasonable accommodation for a disabled employee does not obligate an employer to convert a temporary, light-duty position to a permanent one when doing so would create a new position.2

The Workers' Compensation Appeals Board continues to strictly enforce the return to work provisions as seen in Gonzalez v. La Mirada Post-Acute.3 The employer demonstrated that a modified position may have been available, but there was no documentation provided to support a good faith offer was made to the injured worker.

Offering an Alternative Position

You may offer an alternative position for which the injured employee is qualified within the work restrictions. Unlike a modification of the regular job, alternative work is a different job within the same company.

The alternative position must meet the following requirements:

• It must last at least 12 months;
• It must pay at least 85 percent of the wages and benefits of the employee’s former position; and
• It must be located within a reasonable distance from the employee’s residence at the time of the injury.

This offer must be made on the same form noted above, DWC-AD 10133.35.

1. Lab. Code sec. 4658.6