In the last two issues of California Veterinarian, we explored issues relating to a veterinarian’s duty to warn of an animal’s dangerous propensities, along with suggestions for avoiding potential liability for a failure to warn.
In this and future issues, we endeavor to discuss other matters of importance to veterinarians. In this article, we provide general information on what to do upon receipt of a subpoena that calls for you to provide testimony and/or documents in connection with litigation. This situation may arise where, for example, an individual is attacked by an animal, sues the owner, and seeks veterinary records and/or testimony regarding the animal. As animal attacks become more and more visible on the collective radar screen of the general public, it is likely that lawsuits by victims of animal attacks will increase. If this is the case, the occurrence of veterinarians being called upon to provide records and/or testimony in a lawsuit regarding an animal patient will also rise. It is therefore important for veterinarians to be at least generally familiar with the process by which such evidence is obtained.
What is a Subpoena?
A subpoena is a document issued under court authority which commands the attendance and testimony of and/or production of documents by a witness who is not an actual party to the lawsuit in which the testimony and/or records are sought. A subpoena may be issued to compel attendance or production of documents in court or at a deposition. Since most subpoenas issue in the context of depositions, it is this type of subpoena that will be the focus of this article.
Under the California Code of Civil Procedure, a deposition subpoena may command (1) the production of business records for copying, (2) the attendance and testimony of an individual or representative of an entity (known as the “deponent”), or (3) both the attendance and testimony of the deponent and the production of business records, other documents, and/or tangible things.
Subpoenas Seeking Testimony Only
The first type of subpoena is that which requires only the attendance and testimony of the deponent. Such a subpoena must specify the time and place of the deposition, and also must provide a summary of (1) the nature of the deposition, (2) the rights and duties of the deponent, and (3) the penalties for disobedience of the subpoena (which penalties include punishment for contempt of court). If the deposition is to be videotaped, the subpoena must specifically so indicate. If the named witness is an organization rather than an individual (i.e., a veterinarian’s corporation as opposed to the veterinarian personally, as will oftentimes be the case), the subpoena must describe with reasonable particularity the matters on which examination is requested, and must advise the organization of its duty to designate the person most qualified to testify on the organization’s behalf regarding the specified matters (which, of course, will usually be the veterinarian).
Subpoenas Seeking Business Records Only
The second type of deposition subpoena is that which commands only the production of business records (for veterinarians, these will most commonly be veterinary medical records) for copying. Such a subpoena must specifically describe each individual item or reasonably particularize each category of item sought, and must be directed to the custodian of the sought-after records or another person qualified to certify that the records are prepared and maintained in the ordinary course of business.
Subpoenas Seeking Records and Testimony
The third type of subpoena is that which requires both the attendance and testimony of the deponent, as well as the production of business records, documents, and/or tangible things. This subpoena must include the same information as that contained in a subpoena seeking testimony alone and, as with a subpoena seeking business records only, must designate the documents and/or things sought on an item-by-item basis or by reasonably particularized categorization.
Service of Subpoenas
A subpoena must be served personally. Thus, if you receive a subpoena requiring your attendance at deposition or production of documents, or both, by mail alone, you are under no duty to appear for the deposition or produce the requested documents. Although no specific amount of time in advance of the deposition date is required to command a deponent’s attendance, a sufficient time is required to allow the deponent to locate and produce any designated documents or things and to travel to the deposition.
Where the subpoena seeks the production of records only (and does not require personal attendance at deposition), the designated date for document production must be no earlier than 20 days after issuance, or 15 days after service, of the subpoena, whichever date is later.
Responding to a Subpoena Seeking Business Records Only
In the case of subpoenas seeking business records alone (e.g., veterinary medical records), the custodian of the requested records or other qualified person will usually be instructed to provide copies of the records to the deposition officer specified in the subpoena, either by delivering (personally or by mail) such copies to the office of the deposition officer (in which case the records must be separately enclosed and sealed as specified in California Evidence Code section 1560, subdivision (c)), or, alternatively, by permitting the deposition officer to come to the custodian’s office during normal business hours to make copies of the documents. On some occasions, a subpoena may direct the witness to make the original records available for inspection or copying by the subpoenaing party’s attorney or a representative thereof.
Regardless of the method by which the documents are provided, the custodian must execute an affidavit stating that (1) he or she is authorized to certify the records, (2) the copies provided are true copies of the records specified or categorized in the subpoena or were delivered to the attorney or authorized representative thereof for copying, (3) the records were prepared by the personnel of the business in the ordinary course of business at or near the time of the relevant act, condition, or event, (4) the identity of the records, and (5) a description of the mode of preparation of the records. Also, if the witness has none of the records described or only part of those records, the custodian must indicate this fact in the affidavit. Note that the requested records must not be delivered before the time specified in the subpoena.
Always remember that good recordkeeping makes the process of producing documents a good deal easier and less time-consuming. In the case of veterinary records, clearly-marked and user-friendly files, separately maintained for each animal patient, are preferable. Furthermore, be aware that computer files (including emails) are discoverable and subject to the scope of a subpoena, so make sure that good recordkeeping procedures extend to the computer realm, also.
A subpoena may be opposed or challenged on a number of substantive (e.g., oppressiveness or lack of relevance of the categories of records or testimony sought) and procedural (e.g., defects in form or service of the subpoena itself) grounds. Challenges may be raised by the witness who received the subpoena or a party to the litigation in which the subpoena is issued. A subpoena that is substantively or procedurally defective may be challenged by procedures such as a motion to quash or a motion for a protective order.
The above guidelines relate to the provision of testimony or records as a “percipient” witness. A “percipient” witness is one called upon to testify in a non-expert witness capacity. By contrast, an expert witness is a qualified individual specifically called upon to offer opinion or similar testimony regarding a particular matter. Where an expert is retained by a party to litigation for the purpose of forming and expressing an opinion, no subpoena is required in order for that expert witness to be called upon to provide deposition testimony; service of a deposition notice on the retaining party’s attorney, together with tendering of expert witness fees at or before the time of deposition (these fees are the reasonable and customary hourly or daily fees for the expert’s services, as disclosed in the expert witness declaration that will previously have been provided by the party on whose behalf the expert is testifying), is all that is required. However, a subpoena must still be used in order to command production of documents by the expert.
If your attendance at deposition is commanded, be sure and show up punctually at the time and place of deposition, bringing the documents and things specified in the subpoena, if any. Non-party percipient witnesses are entitled to daily witness fees (currently $35.00 per day) and mileage fees (currently $.20 per mile to and from deposition) for attending a deposition, so you should receive such fees either with the subpoena itself or at the time of deposition. If no such fees are presented at the time of deposition, insist that they be provided; the duty of the subpoenaing party to provide such fees is mandatory. (As stated above, if you are testifying as a retained expert witness, you are entitled to expert witness fees. These fees must be provided to the retaining party’s attorney no later than the commencement of the deposition.)
During the deposition, remember that you will be under oath, just as if you were testifying in a courtroom. Always provide truthful and accurate testimony. Remain calm. Provide short and succinct answers, unless the question clearly calls for a more lengthy or descriptive answer. Only answer the questions asked, and do not volunteer information unless you absolutely feel such information is necessary to provide a full and accurate answer to the question asked. If you do not know the answer to a question or do not recall a particular fact or nugget of information, say so. If you are confused by a question or otherwise do not understand the question being asked, do not be afraid to ask for clarification. It is the deposing attorney’s duty to ask proper and understandable questions, and you should not answer a question you do not understand; indeed, doing so may lead to inaccurate or misleading testimony. Furthermore, if you have not been designated as an expert witness, you are not required to provide your opinion, and it likely would not be favorable for you to do so. As a percipient witness, however, you may nonetheless be required to testify as to why you arrived at a particular diagnoses or embarked upon a particular course of treatment.
If you feel apprehensive about the deposition process in general or your role in the specific litigation in which your deposition is being taken, contact a qualified attorney to discuss whether you should be represented during the deposition. An attorney may also help you respond to a subpoena in which business records or other items are sought if you are unsure about your duties in this regard.
In the last several issues of California Veterinarian we have undertaken to provide information regarding various legal issues of importance to California veterinary practitioners. In the July/August and September/October issues of California Veterinarian, we addressed veterinarians’ duties of care with respect to warning pet owners, staff, and third persons about an animal patient’s dangerous propensities and provided suggestions on how veterinarians may discharge any “duty to warn.” In the November/December issue, we turned to another matter of concern: the duties of a veterinarian in responding to a subpoena served in connection with litigation. In this article, we address several ancillary issues that have been raised by our prior articles.
One such issue deals with the nature of a written warning provided by a veterinarian to a pet owner regarding the dangerous propensities of the owner’s animal; specifically, should a veterinarian choose to provide such a written warning, what should be said?
The basic answer is that each veterinarian should use his or her common sense with respect to the specifics of a written warning. As stated in the September/October article, a veterinarian is ill-advised to provide an overly narrow or vague warning in describing the potential danger posed by the animal at issue. Warning letters should be written in a clear and understandable manner, and veterinarians, when drafting such letters, should refrain from employing obscure terminology or “in house” verbiage in describing the problem. Remember, you are writing to a pet owner, not another veterinarian. The letter should be drafted so that the owner recipient may discern the nature of the warning being given and the general reasons therefor. Always keep in mind that providing an unintelligible warning is little better than providing no warning at all.
There is nothing wrong with maintaining a form letter for general use in cases where you believe a warning is necessary. However, make sure that any such letter is flexible enough to allow inclusion, if appropriate, of a discussion regarding the specific facts and circumstances of the animal at issue. Like use of a letter that is difficult to understand, rote use of an unchanging form letter may be of little value to the recipient owner.
In short, think of how you would want to receive communications from a professional in a field that you do not fully understand. Just as you would not want an attorney to explain a situation to you using “legalese,” do not cloud the message you are trying to send by resorting to the drafting of letters that are overly technical and/or incomprehensible.
Another issue that has been raised is whether and when a particular animal patient should be referred to a veterinary behaviorist. Is such a referral required by the relevant standard of care?
Frankly, the issue is so uncultivated that it is doubtful that the veterinary standard of care (at least in the warning context) currently requires referrals of animals that exhibit dangerous propensities to a veterinary behaviorist. The field of veterinary behavioral medicine is itself an emerging specialty, and there are only a handful of certified Veterinary Behaviorists in the State of California. By contrast, there are many non-licensed individuals (such as animal trainers and the like) operating in this area. To whom must a referral be given? Moreover, while one might argue that a referral may in some cases be demanded by veterinary standards of care in order to properly render full and complete treatment to the animal itself (in order to combat the behavior problem), a referral would not appear to be a component of the duty to warn an owner of the animal’s dangerous propensities, so long as the owner is otherwise adequately apprised of the animal’s tendencies.
Another issue related to the duty to warn arises when the veterinarian decides to prescribe medications to combat an animal’s behavioral problems. As you know, when a prescription is given, the veterinarian provides full instructions regarding the use and effect of the drug(s) at issue. Specifically, the veterinarian instructs the owner that the prescribed medication should not be relied upon to completely erase the danger posed by the animal to the owner and others. Certainly, it is part and parcel of the duty to warn to provide complete disclosure of what a prescribed drug can and cannot do. Veterinarians should not provide owners with a false sense of security regarding a dangerous pet, and should make clear that while the medication is designed to reduce the danger posed by an animal, it is still up to the owner to minimize the opportunity of the animal to cause injury to the owner and others. A veterinarian who fails to give such cautionary instructions is walking into a potential minefield of liability.
Another issue that is germane to the matters discussed in the previous several articles is the adequacy of your insurance coverage. Veterinarians should obviously strive to avoid situations out of which liability may arise by, among other things, providing the types of disclosures previously discussed. However, when these proactive steps fail, it is important to have the appropriate amount and type of insurance in place to best discharge any judgments entered against you.
So, exactly what type and how much insurance should one carry? There are no simple answers, because there are no “one size fits all” solutions for every type of practice. Your individual specialty, type of practice (companion, mixed, equine, or exotic), form of business entity (sole proprietorship, corporation, partnership, et cetera) and exposure to the general public will dictate what types and limits of coverage you need. Further, the value of your business and personal assets and your comfort with risk will likely be factors to be considered.
A lawsuit can originate from a number of acts, incidents or accidents. Depending upon the circumstances, each might fall under a different form of liability insurance policy. For veterinarians, the three most common arenas from which suits arise include:
a) Lawsuits originating from professional negligence, referred to as malpractice. This term includes alleged errors and omissions or mistakes committed in or arising out of the practice of veterinary medicine.
b) Lawsuits regarding incidents arising out of the ownership of a premises or business operation. Examples include trips, slips, falls, animal bites or other injuries to the public or guests while on the premises.
c) Lawsuits for injury to a person’s reputation or character. Such lawsuits include those seeking damages for defamation of character, based on alleged libel (written defamation) or slander (oral defamation).
Should you be charged with malpractice, the issue will often surface as a complaint to the Veterinary Medical Board (“VMB”) prior to any civil lawsuit being filed. It should be noted that the majority of professional liability insurance policies do not cover and will not respond to an administrative or consumer complaint originating from the state Veterinary Medical Board. An insurance policy would respond to an ensuing malpractice lawsuit, but not the civil penalties or costs which could be assessed by the VMB. Accordingly, you may wish to procure a policy or an endorsement to a policy that provides at least the cost of defending against a VMB action.
When an insurance company is notified of a lawsuit, it first investigates the cause or action that created the complaint, injury or damage. The company then determines the policy and coverage under which the claim would be defended. In doing so, the company determines if the underlying cause of loss was professional negligence, personal injury or a premises hazard that caused the injured party to seek relief. If the insurance company elects to deny coverage, it is required to advise you of the denial and the basis of the denial. If you have question the appropriateness of a denial of coverage, you should seek the assistance of counsel.
Third-party injuries can arise out of professional negligence concurrently with premises ownership. Take the case of a pet owner who is bitten or scratched while restraining his/her own animal for the veterinarian or the veterinarian’s staff. In this case, the claim may be defended under the professional liability policy for failure of the veterinarian to warn the owner that even a family pet can become dangerous when stressed or in pain during medical treatment. However, the same claim may also be defended under the premises liability coverage, simply because the incident “arose out of ownership of” or took place on the property. Because of these types of claims, it’s an excellent idea to have all liability insurance coverages with a single carrier and, where possible, within the same policy.
Malpractice can also arise from an omission, such as failure to meet a standard of care. This includes failure to warn owners that their animal has behavioral problems which may cause injury to family, friends or the general public. Similarly, negligence can occur by way of a failure to explain to an owner (and failing to properly document in the patient record) that the medications prescribed to calm a fractious animal might not reduce their inclination to bite or scratch someone. In this vein, numerous claims have resulted from injuries occurring when an owner loses control of a pet in a veterinary hospital waiting room and it subsequently injures a third party or another animal. In the case of such a professional omission, the insurance coverage would be afforded by the malpractice policy. Where the injuries were caused by an incident in the waiting room, the general liability (premises liability) policy for the hospital would typically respond.
So, what limits should you carry? Consider a clinic that only treats companion animals with relatively low economic value. Do they need high limits of liability or would $50,000 or $100,000 be adequate? To answer the question, consider the following: In the typical companion animal clinic (which generally has a low exposure to high valued animals), if the veterinarian fails to recognize or diagnose a rabies case that subsequently exposed members of the public requiring them to undergo treatment, would a plaintiff and his/her attorney necessarily sue for only $100,000? Likely not. What if this same veterinarian failed to notify and properly document to an owner that the owner had a dangerous dog and should take extra precautions to protect the public and family members and, subsequently, someone’s child was severely attacked and injured by that animal? Again, in such a case, you would want very high limits of coverage.
Both of these potential civil cases would undoubtedly be defended under a veterinary professional or general liability policy. Therefore, it is not unreasonable to carry at least one million dollars of coverage per incident and two million dollars in the aggregate for all claims during the policy term. Of course, the greater the policy limits, the greater protection you have. You should also consider the value of your assets that you wish to protect. For instance, a veterinarian with a substantial portfolio may be more willing to pay premiums for high policy limits than a new veterinarian heavily burdened with student loans
Today, veterinary malpractice insurance is readily available and modestly priced, especially when compared to other medical professionals’ coverage. The cost difference to increase business and professional liability to one million dollars is quite reasonable. Likewise, with the current legal climate in which veterinarians live and practice, it is highly recommended that they have at least $10,000 of Veterinary Medical Board defense coverage if it is available in their area.
The most important thing to remember when faced with a lawsuit or VMB complaint (or threat of one) is to contact your insurance representatives immediately. Their job is to counsel you through the incident, advise if a report should be filed with the carrier and provide resources to begin building your defense against any claims or proceedings that may arise. Once you present the facts of the case, the carrier will advise you what course of action to take to minimize your involvement in the claim.
In some cases, an incident occurs which may give rise to the possibility of a future claim. While no lawsuit or threat has been received, the veterinarian has concerns because of the specific facts behind the incident. If this happens to you, always contact your insurance professional and discuss the circumstances of the situation. Your representative may complete a report for information purposes only, in which no claim is submitted until such time as a lawsuit is filed. By doing this, you make sure that preliminary information gathering is obtained by the insuring company in a timely manner and the reporting clauses in the insurance contract have not been compromised.
Anytime you have questions concerning general or professional liability, it is prudent to contact your insurance representatives or your counsel. They represent you and are thoroughly familiar with lawsuits, so you can freely discuss the issues frankly and openly, and they will be there should the need arise.
(contained in July/August 2002 issue of California Veterinarian Magazine—Volume 56, Number 3)
In recent months, veterinarians have become increasingly concerned about various legal issues that were heretofore not closely considered within the veterinary community. The much-publicized Whipple dog-mauling case has forced veterinarians to reflect upon their professional and legal obligations, if any, to warn about the dangerous propensities of a particular animal. This same case has also generated questions and concerns about veterinarians’ rights, duties, and obligations when enlisted to act as a witness in connection with litigation, either in an expert or “percipient” capacity.
In the next several issues of California Veterinarian, we will endeavor to assist veterinarians in dealing with assorted legal matters that are of increasing concern to California veterinary practitioners. In this and the next issue, we discuss a veterinarian’s duty of care in regards to warning of an animal’s dangerous propensities. The first part of this analysis requires outlining relevant law regarding this “duty to warn” in an attempt to identify principles defining the parameters of such a duty, including when a warning may be required and who must be warned.
General Duties of Care
Veterinarians are familiar with the fact that they must provide professional veterinary care in a competent and humane manner, and that all aspects of veterinary medicine are to be performed in a manner consistent with current veterinary medical practice within the State of California. (See, e.g., Title 16, Cal. Code Regs. § 2032.) In this regard, a veterinarian’s general duty of care is defined by veterinary “community standards.” As these “community standards” are evolving, so is the veterinarian’s duty of care.
In analyzing duties imposed on a veterinarian in connection with his or her rendering of professional services, there are certain standards that are employed. Such a “duty” analysis is rooted in the legal principle of negligence. Thus, if a veterinarian does not carry out his or her duties in accordance with relevant community standards of professional care, that veterinarian has acted negligently. To maintain a valid cause of action based upon the negligent acts or omissions of a veterinarian in the performance of professional duties or services, a plaintiff must establish (1) the basis for the duty (generally by the veterinarian having been retained to perform veterinary services); (2) the veterinarian’s failure to exercise the appropriate standard of care; and (3) that the veterinarian’s departure from that standard was the proximate cause of injury.
Defining the Duty to Warn
Of course, the negligence analysis set forth above usually comes in the context of a veterinarian’s provision of care to the animal itself and injuries to the animal resulting therefrom. Although there are certain statutory and regulatory provisions regarding veterinary notification duties in particular circumstances (such as California Business and Professions Code section 4830.5, which states that whenever a veterinarian has reasonable cause to believe that a dog has been injured or killed through participation in a staged animal fight, the veterinarian must promptly report the incident to the appropriate authorities, or Title 17, Cal. Code Regs. § 2606, imposing a duty on “any person” having knowledge of the whereabouts of a rabid animal or the fact that a person or animal has been bitten by a rabid or suspected rabid animal to report to the local health officer), there is remarkably little by way of statute or case law (in California or elsewhere) regarding a veterinarian’s duty, if any, to warn of an animal’s dangerous propensities. Still, several cases provide some guidance as to the application of the duty to warn.
For example, at least one court found that a veterinarian was not liable for the failure to warn of a dog’s dangerous condition where the dog, following a veterinary examination, bit the owner. In McNew v. Decatur Veterinary Hospital, Inc. (Ga. 1951) 85 Ga. App. 54, the court concluded that the plaintiff owner did not prove that the veterinarian failed to exercise the degree of care that would have been exercised by a prudent veterinarian under the same circumstances in instructing the owner how to care for his dog, which had been treated for injuries and examined for rabies after itself being bitten by another dog. Although the veterinarian did not provide a specific warning about the dog’s dangerousness, the veterinarian did advise the owner to keep the dog confined for a period of 21 days. This instruction was deemed sufficient to preclude a finding of liability.
In Branks v. Kern (N.C. 1987) 320 N.C. 621, the North Carolina Supreme Court held that there was insufficient evidence to allow a jury to find that the veterinarian defendant violated a duty of care to the plaintiff owner by failing to restrain the plaintiff’s cat during a catheterization or by failing to warn the plaintiff of the risks of remaining in close proximity to the cat during the procedure. The court found that the plaintiff, who had observed the procedure in its entirety, was in as good of a position as the veterinarian to appreciate the risk that the cat would try to bite someone in its immediate vicinity. This conclusion was bolstered by the fact that the cat had previously tried to bite the veterinarian’s assistant in the plaintiff’s presence, and was therefore clearly revealed as a hazard at that point. The veterinarian was held not to have a duty to warn of a danger about which the plaintiff had equal knowledge.
In Fazio v. Martin (N.Y. 1996) 227 A.D.2d 809, the owner of a dog was held not to have knowledge of the dog’s vicious propensities prior to the dog’s attack on a four year-old child, and therefore not liable for the injuries suffered by the child. The previous day, the dog had been treated by a veterinarian after a nail had become stuck in the dog’s paw. The veterinarian supplied a dosage of antibiotics, but released the dog with no special restrictions or warnings. The next day, while the dog was being walked, the child attempted to pet the dog and was attacked after accidentally stepping on the dog’s injured foot. The defendant owner’s case was aided by an affidavit from the veterinarian, in which the veterinarian indicated that the dog displayed no aggressive tendencies when discharged, the antibiotics prescribed for the dog would not cause mood swings, and the only instructions given to the owner were routine and related to the cleaning of the dog’s bandages. Notably, the veterinarian was not named as a defendant in the lawsuit.
Certain general principles may be culled from the above decisions. First, where an animal’s dangerous propensities are as readily apparent to the owner as the veterinarian, it is unlikely that an owner would have a legally cognizable claim against the veterinarian for a failure to warn. Whether this circumstance creates a flaw in the plaintiff’s affirmative case or is instead properly utilized as an affirmative defense by the veterinarian is immaterial for our purposes. The bottom line is that a veterinarian probably cannot be held liable for a failure to warn an owner who already has knowledge of an animal’s dangerous propensities.
Second, if the veterinarian has no knowledge, or cannot reasonably be said to have known, of an animal’s dangerous propensities, it is highly unlikely that the veterinarian could be held liable for a failure to warn. Although a veterinarian will be held to a higher standard of constructive knowledge (i.e., what the veterinarian “should” have known based on the community standard of veterinarians) than a layperson, there will be some circumstances where an animal’s future conduct cannot be predicted, even by a veterinarian. Moreover, the California “dog bite” statute (Civil Code section 3342, imposing civil liability for injuries suffered from a dog bite) applies only to owners of dogs, not to veterinarians. Therefore, a veterinarian will not be subject to strict liability under the “dog bite” statute, and any claim for indemnification by the owner against the veterinarian would seem to require a finding of negligence.
Third, a veterinarian may not have to utter certain “magic” warning words in order to fulfill his or her duties. Other types of instructions or directions, such as the instruction to keep the pet confined in McNew, may suffice.
Obviously, these general principles are not extremely helpful in terms of clearly defining a veterinarian’s duties with respect to warning owners, staff, and other individuals about a given animal’s dangerous propensities. Simply put, the issue of veterinary liability for a failure to warn of dangerous propensities is a decidedly undeveloped body of law. The above cases focus only upon the duty to warn an owner of the dangerous propensities of an animal, and do not address the scenario of concern in the “Whipple” case, where a third-party who was a stranger to the veterinarian was injured by a dangerous animal. In the Whipple matter, the veterinarian did warn the owners that the dog had dangerous propensities and to take prophylactic measures. If such warnings become the “community standard,” the veterinarian’s duty to provide warnings could be expanded. With more and more publicity being directed at dog attacks and the like, it is only a matter of time before veterinarians find themselves on the “business end” of a civil lawsuit by an animal attack victim. In the next issue, we offer some suggestions about what steps veterinarians can take in order to fulfill their duties and minimize their liability.
Both the federal Americans with Disabilities Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”) affirmatively require employers to make reasonable accommodation for the known physical or mental disability of an applicant or employee, unless the employer can show that doing so would cause an undue hardship. Reasonable accommodation can include making existing facilities readily accessible to, and usable by, individuals with disabilities. Reasonable accommodation can also include: job restructuring; reassignment to a vacant position; part-time or modified work schedules; acquisition or modification of equipment or devices; adjustment or modification of examinations, training materials or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. This article discusses the scope of an employer’s obligation to reasonably accommodate an employee’s disability by reassignment to a vacant position.
WHEN SHOULD AN EMPLOYER CONSIDER REASSIGNMENT?
An employer should always consider reassignment when it is not possible to accommodate an employee’s disability in her current job, or when such an accommodation would cause the employer undue hardship. To take an example from a recent California case, if an operating room nurse develops an allergy to a solution used to sterilize surgical instruments, her employer might not be able to reasonably accommodate her in her current job without undue hardship. In this circumstance, the employer should consider reassigning the nurse to a vacant position that does not require her to come into contact with the sterilizing solution.
THE EMPLOYEE MUST BE QUALIFIED FOR THE NEW POSITION.
An employer does not have to reassign a disabled employee unless the employee is qualified for the new position. An employee is considered qualified if he is able to perform the essential functions of the new position with or without accommodation. In other words, an employer may, in effect, have to accommodate the disabled employee twice — first by reassigning the employee to a vacant position, and then again by making accommodations that will allow the employee to perform the essential functions of that position.
THE EMPLOYER NEED NOT CREATE A NEW POSITION.
An employer does not have to reassign an employee if no vacant position exists for which the employee is qualified. This means that an employer does not have to create a new position in order to accommodate a disabled employee, or bump another employee out of a position in order to create a vacancy.
THE EMPLOYER MUST TAKE AN ACTIVE ROLE IN LOCATING A VACANT POSITION FOR WHICH THE DISABLED EMPLOYEE IS QUALIFIED.
Several courts have recently held that it is not enough for an employer to merely allow an employee to apply for other jobs within the company. As one court has explained, all employees have the right to apply for other jobs within a company; reminding an employee of a right she already has is not a reasonable accommodation. And in the words of another court: “[T]he word ‘reassign’ must mean more than allowing an employee to apply for a job on the same basis as anyone else. An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been ‘reassigned’; the core word ‘assign’ implies some active effort on the part of the employer.” These cases suggest that it is not enough for an employer merely to give a disabled employee a listing of all available jobs or to tell an employee to keep checking the job board. Instead, the employer should take an active role in attempting to identify and locate an alternative position for which the employee is qualified.
DISABLED EMPLOYEES MIGHT BE ENTITLED TO PREFERENTIAL CONSIDERATION FOR VACANT POSITIONS.
What if a disabled employee asks to be reassigned to a vacant position, but there is another applicant who is more qualified? Several courts have recently held that, if the disabled employee is minimally qualified for the position, she must be hired. In the words of one court, “when reassignment of an existing employee is the issue, the disabled employee is entitled to preferential consideration.” This means that an employer who decides not to reassign a disabled employee to a vacant position must be prepared to demonstrate that the employee was not qualified (i.e., that the employee could not perform the essential functions of that position, with or without accommodation).
What about disabled job applicants? Do employers have to give preferential treatment to disabled job applicants as well as disabled employees? Probably not. Both the ADA and FEHA specifically provide that reasonable accommodation can include reassignment to a vacant position, and, as several courts have noted, only existing employees can be reassigned. Moreover, at least one federal court has noted that the legislative history of ADA warns against preferences for disabled applicants, but contains no similar warning for disabled employees.
HOW DO SENIORITY SYSTEMS AFFECT AN EMPLOYER’S OBLIGATION TO CONSIDER REASSIGNMENT?
The existence of a seniority system that was negotiated under a collective bargaining agreement changes the rule that a qualified disabled employee must be given preferential consideration for vacant positions. An employer is only required to reasonably accommodate its disabled employees, and, as explained by one court, “[A]n accommodation that is contrary to the seniority rights of other employees set forth in a collective bargaining agreement would be unreasonable per se.” However, if the seniority system is not collectively bargained, but is instead merely imposed by the employer, the rule changes again. In such a case, an accommodation that is contrary to the seniority rights of other employees is not per se unreasonable. Instead, the existence of the seniority system is only one factor for the court to consider in analyzing whether the accommodation (i.e., reassignment in derogation of the seniority rights of other employees) would cause the employer undue hardship.
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Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.