Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

The 4th U.S. Circuit Court of Appeals has reversed a lower court’s summary judgment in favor of an employer who required a female employee to take a physical ability test after an on-the-job injury, even though it did not require such a test for similarly situated male employees. Merritt v. Old Dominion Freight Line Inc., 4th Circ., No. 09-1498, April 9, 2010.

Deborah Merritt worked for Old Dominion Freight Lines as a Line Haul driver. While Line Haul drivers spend nights and weekends away from home, driving across state lines, Old Dominion also had Pickup and Delivery drivers who worked locally and rarely had to work nights or weekends. In 2002, after six years as a Line Haul driver, Merritt began to apply for a Pickup and Delivery job, in order to spend more time with her family. She claimed that she applied for several open Pickup and Delivery positions, but that less-experienced male drivers were hired. Merritt alleged that she was told by a terminal manager that the company didn’t want women in the Pickup and Delivery jobs - which required more lifting – because management was afraid that a woman “would get hurt.” Of the company’s 3100 Pickup and Delivery drivers, only six were female.

In March 2004, Merritt was hired as a Pickup and Delivery driver, but not until two male Pickup and Delivery drivers were asked how they would feel about working with a woman. (They responded that they would have no trouble doing so.) Merritt was then put on a 90-day probation period which, she alleged, was not the typical procedure for new Pickup and Delivery drivers. By all reports, Merritt performed her new job successfully, and received no complaints from customers or co-workers. During this initial time frame, however, the terminal operations manager allegedly told a male driver that “this is not a woman’s place.”

In September 2004, Merritt suffered an ankle sprain at work and also was diagnosed with plantar fasciitis. Her doctor prescribed light duty work until a December 27 appointment. At that appointment, the doctor concluded that Merritt’s injury was “not a disabling condition,” and that she could return to work without restrictions. Just prior to that appointment, however, the company’s vice president of safety and personnel decided that Merritt would have to pass a Physical Ability Test (PAT) before she was allowed to return to work. The test was administered on December 28, immediately after Merritt’s full release to return to work, and the company determined that Merritt failed the test. While the test showed no restrictions related to Merritt’s ankle injury, it indicated that the 5 foot, 1 inch Merritt was unable to place a particular box on an overhead shelf, and had difficulty walking backward pulling a cable (Merritt testified that the test occurred in a hallway full of people, and that she bumped into several of them). On the basis of that test, Merritt was fired for “inability to perform job.” She sued under Title VII, claiming gender discrimination.

Although the lower court granted summary judgment to Old Dominion, that decision was reversed by the Fourth Circuit. The appellate court determined that a reasonable jury could find that the evidence presented by Merritt undermined Old Dominion’s assertion that it had a “regular policy” of requiring drivers to pass a PAT before returning from injury-related absences. In fact, the company used the test inconsistently, and injured male drivers often returned to work without taking such a test. Further, the company did not use the PAT – which originally was developed for new applicants - to test Merritt’s return from her ankle injury, but applied the test for strength and coordination. Therefore, the Court found that, given the earlier statements by other managers that the Pickup and Delivery job was not suitable for women, in light of the dearth of females in that position, and considering that the PAT was used only on an intermittent basis and then typically for new hires, a reasonable jury could find that gender discrimination may have been the real reason for Merritt’s termination.

The Court’s opinion and comments create a road map for companies who are serious about instituting a safety-based testing program. According to the Court, a neutral policy which served the company’s legitimate business and safety interests could have withstood legal challenge. However, Old Dominion’s selective use of the PAT, along with the company’s changing rationales for its use, possible sexist remarks, and a statistical lack of females in the subject position all could indicate to a jury that the company was reserving the more desirable “Pickup and Delivery” positions for male drivers.
 

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In an unusual case of first impression, the 3d U.S. Circuit Court of Appeals has held that under certain circumstances, the ADA may obligate an employer to accommodate an employee’s disability-related difficulties in getting to work. In that case, the Court reversed summary judgment in favor of an employer and held that changing a part-time employee’s schedule to day shift – because her monocular vision made it dangerous for her to drive at night – could be a reasonable accommodation under the ADA. Colwell v. Rite Aid Corporation, 3d Circ., No. 08-4675, April 8, 2010.

In April 2005, Jeanette Colwell began employment as a part-time retail clerk at a Rite Aid store in Old Forge, Pennsylvania, generally working weekdays from 5:00 to 9:00 p.m. A few months after she began working there, Colwell was diagnosed with “retinal vein occlusion and glaucoma,” which eventually left her blind in one eye. In September 2005, Colwell informed her supervisor that the partial blindness made the drive to work at night dangerous and difficult for her, and asked to be switched to day (9:00 a.m. to 2:00 p.m.) shift so that she could drive to work safely. Public transportation was not an option, because the buses stopped running at 6:00 p.m. in that area. Colwell was told her shift would not be changed because it “wouldn’t be fair” to the other employees. At that point, Colwell began to rely on relatives to drive her to work, even though she said it was a “hardship” for her family to do it.

On October 12, 2005, after a number of unsuccessful attempts to have her shift changed to permanent day shift, Colwell wrote a letter of resignation to Rite Aid that stated that she felt that she had “not been given fair treatment.” Rite Aid never responded to Colwell’s note. A few months after leaving her position with Rite Aid, Colwell filed a lawsuit that included a claim that the company had failed to accommodate her disability by refusing to move her to the day shift.

The district court granted summary judgment to Rite Aid on Colwell’s failure-to-accommodate claim, on the basis that Colwell “did not need an accommodation to perform her job once she arrived at work.” The lower court found that the accommodation requested by Colwell “had nothing to do with the work environment or the manner and circumstances under which she performed her work,” and that the ADA only covers barriers “that exist inside the workplace.”

The Third Circuit reversed that decision, disagreeing with Rite Aid’s position that Colwell’s difficulties amounted to a “commuting problem unrelated to the workplace.” Instead, the Court found that the reach of the ADA is not limited in that way, and that changing Colwell’s work schedule to day shift was, in fact, the type of accommodation contemplated by the ADA. The Court pointed to language within the ADA in which the term “reasonable accommodation” is defined to specifically include “modified work schedules,” and that what Colwell was requesting was, in essence, a schedule change. The Court held that “under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable.” Because Colwell’s requested accommodation was a change in workplace condition that was entirely within the company’s control, and would have allowed Colwell to get to work to perform her job, the Court found that the shift change could be viewed as a reasonable accommodation.

Although in this case, the Court held that the ADA contemplates that an employer may need to modify an employee’s work schedule to accommodate that individual’s disability-related difficulties in getting to work, the employer is not precluded from asserting a defense that the re-scheduling may create an “undue hardship” or financial burden if, in fact, it does. This case underscores the need for a full evaluation of an individual’s particular medical impairment to determine what aspects of employment are affected, the benefit of participating in the interactive process required under the ADA, and the need to review the employee’s request for accommodation in the broadest context possible to determine whether or not the request will assist the employee in the performance of his or her job. Because this decision seems to expand employers’ obligations with respect to “reasonable accommodation,” it is worth following to see whether other courts of appeal rule consistently with the case.
 

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The 3d U.S. Circuit Court of Appeals has ruled, consistently with the Seventh, Eighth, and Eleventh Circuits, that the side effects of medication may render an individual “disabled” for purposes of the Americans with Disabilities Act, even though the underlying condition for which the medication was prescribed does not. Sulima v. Tobyhanna Army Depot, 3d Circ., No. 08-4684, April 12, 2010.

Ed Sulima was employed by defense contractor Defense Support Services, LLC (known as “DS2”), and in 2005, was assigned to work as an electronics technician at Tobyhanna Army Depot in Pennsylvania. Sulima, who has been diagnosed as morbidly obese and who suffers from sleep apnea, was taking a prescription weight-loss medication at that time. As a result of side effects related to the medication, Sulima took numerous and extended bathroom breaks during the workday. When Sulima’s supervisors asked him about the breaks, Sulima explained the side effects of his medication, and said he would ask his doctors whether a different prescription was available with fewer side effects. However, Sulima continued to take long bathroom breaks, and Tobyhanna informed him that he would be transferred out of his work group.

After being informed of the transfer plans, Sulima brought a note from his doctor which stated that the medication was being changed and the breaks would be less frequent. Nevertheless, Tobyhanna decided to move Sulima out of his work group. No other similar jobs were available; Sulima accepted a “voluntary” layoff on December 12, 2005, and found employment elsewhere. He then sued both DS2 and Tobyhanna under the ADA and the Rehabilitation Act, arguing that the two companies were his “joint employer” and that he had been laid of due to a disability or perceived disability. The district court granted summary judgment to both defendants, finding that Tobyhanna was not Sulima’s joint employer, and that Sulima had failed to raise a triable issue of fact against DS2 under the ADA.

The Third Circuit upheld the lower court’s decision, holding that although the adverse side effects of Sulima’s medication could have caused an impairment rising to the level of a “disability” under the ADA, that category of disability is subject to certain limitations. Consistent with the Seventh Circuit’s decision in Christian v. St. Anthony Med. Ctr., 117 F.3d 1051 (7th Cir. 1997), the Third Circuit held that an impairment caused by the side effects of a prescribed medication may constitute a disability if the plaintiff can show that the medication is required “in the prudent judgment of the medical profession” and that there is not an available alternative that is equally effective but that lacks disabling side effects.

In this case, Sulima could not show that the medication was required in the prudent judgment of the medical profession, based on the fact that when Sulima’s doctor was informed of the adverse side effects, he simply told Sulima to stop taking that medication. In addition, there was no evidence to show that the medication being prescribed was the only effective treatment for Sulima, and there was no evidence that any other treatments would have caused the same side effects. Therefore, Sulima did not demonstrate that the medication’s side effects created a “disability” under the ADA. The Court further found that Sulima did not allege facts sufficient to show that DS2 regarded him as disabled within the meaning of the ADA, or that his request for bathroom breaks was a protected activity that led to retaliation by the company.

Employers should not confuse the question of side-effects-as-a-disability with the general issue of “mitigating measures.” One of the specific purposes of the amendments to the ADA, effective in January 2009, is that the question of whether an impairment is “substantially limiting” under the ADA must be judged “without regard to the ameliorative effects of mitigating measures,” which might include mediations. For cases in which an individual’s medication ameliorates or erases the limitations of a physical or mental disability, an analysis of whether that person is disabled must be made without reference to the medication’s effects. However, that provision does not include situations, like Sulima’s, in which a plaintiff is claiming disability only as a result of the side effects of medical treatment for a health condition that, standing alone, does not constitute a disability. Here, the medication is the issue, and must be taken into account under the standard employed by the Third Circuit.
 

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The Internal Revenue Service has developed a form (Form W-11) for use by employers to confirm that an employee is a qualified employee under the Hiring Incentives to Restore Employment (HIRE) Act. While it is acceptable to use a similar statement, such alternate statement will only be acknowledged by the IRS if it contains the information set forth in Form W-11, and the if employee signs it under penalties of perjury. As set forth in the version of the Act signed by President Obama last month, an employer may not claim HIRE Act benefits, including the payroll tax exemption or the new hire retention credit, unless the newly hired employee completes and signs an affidavit or statement under penalties of perjury, and is otherwise a qualified employee.

According to the Employer Instructions that accompany Form W-11, a “qualified employee” is an employee who:

• begins employment with the employer after February 3, 2010, and before January 1, 2011;

• certifies by signed affidavit, or similar statement under penalties of perjury, that he or she has not been employed for more than 40 hours during the 60-day period ending on the date the employee begins that employment;

• is not employed to replace another employee unless the other employee separated from employment voluntarily or for cause (including downsizing); and

• is not related to the employer. An employee is considered to be “related” if he or she is the employer’s child or a descendent of the employer’s child, a sibling or stepsibling, a parent or an ancestor of a parent, a stepparent, niece or nephew, aunt or uncle, or in-law of the employer. An employee also is related to the employer if he or she is related to anyone who owns more than 50% of the outstanding stock or capital and profits interest of the company, or is a dependent either of the employer or of anyone who owns more than 50% of the outstanding stock or capital and profits interest of the company.

The text of the IRS’ affidavit simply states: “I certify that I have been unemployed or have not worked for anyone for more than 40 hours during the 60-day period ending on the date I began employment with this employer.” The affidavit must be signed, dated, and a Social Security Number must be indicated, as well as the first date of employment. The signature line should follow a statement that “Under penalties of perjury, I declare that I have examined this affidavit and, to the best of my knowledge and belief, it is true, correct, and complete.” The form is not submitted to the IRS, but must be kept by the employer to document the information.

As has been stated on other occasions, employers should realize that the HIRE Act does not excuse them from complying with existing anti-discrimination and employment-related laws, and should be aware that the increased hiring generated by the Act also will require increased diligence in compliance with those existing laws.
 

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