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

A federal court in the Eastern District of Pennsylvania granted summary judgment for a newspaper/employer who had been sued after the lay-off of a female page designer who claimed that she was let go because of her gender and her deafness in one ear. Mengel v. Reading Eagle Company, EDPA, No. 11-6151 (March 28, 2013).

The Americans with Disabilities Amendments Act (ADAAA) was implemented to make it less difficult to establish a disability, and is more focused on whether an accommodation can be provided to allow an impaired individual to obtain or maintain employment. The regulations associated with the ADAAA, in fact, include a list of per se disabilities, for which no proof is required. Those disabilities include: deafness, blindness, missing limbs, autism, cancer, and a number of other physical and mental impairments. However, the definition of “disability” under the ADAAA remains unchanged from the original Americans with Disabilities (ADA). Therefore, in order to be entitled to the rights and privileges established under the Act, an individual must show a physical or mental impairment that substantially limits a major life activity, or must show a record of such impairment, or that he or she is “regarded as” being limited in that way.

Christine Mengel began her employment with the Reading Eagle Company in 1999. In 2007, Mengel became deaf in one ear and began having balance problems as a result of surgery to remove a brain tumor. Mengel’s supervisors were aware of those problems, but Mengel continued to perform her job without accommodation.

In January 2009, Reading Eagle decided to perform a reduction-in-force layoff. It rated its employees in seven categories, and eliminated the lowest scoring employees. The ratings categories included: work quality, productivity, versatility, tenure with the company, and inter-personal/teamwork skills. Mengel received a total score of 13 out of 46, the lowest score in her department – the next closest score was a 24. Mengel and two of her co-workers were laid off from her department. The other two individuals were both male employees.

Mengel filed a lawsuit alleging both disability and gender discrimination, stating that she always had received good performance evaluations and that, therefore, her ranking was unfairly low because of her protected characteristics.

The district court granted summary judgment to Reading Eagle on the gender claim, finding that the company had presented a legitimate, nondiscriminatory reason for Mengel’s lay-off (the employee rankings), and that Mengel had not shown sufficient evidence of pretext to overcome the summary judgment motion. The court based its determination on the fact that Reading Eagle produced the matrices and criteria that it used in ranking all of the employees for lay-off, stating that “courts generally do not second-guess the wisdom of a business’ performance evaluations and ratings of its employees” when evidence of the same is proffered.”

The court took an interesting path in analyzing Mengel’s disability claim, granting Reading Eagle’s motion for summary judgment on the basis that Mengel had failed to set forth a prima facie case of disability discrimination. To successfully present a prima facie case, Mengel was required to show that she was a disabled person within the meaning of the ADAAA; that she as qualified to perform the essential functions of her job, with or without accommodation; and that she suffered an adverse employment action as a result of discrimination.

The court found that Mengel had not set forth a prima facie case of disability discrimination because she was unable to provide evidence of the third element by showing “a logical inference of causation between the alleged disability and the adverse employment action.” In its analysis, the court was able to state – without definitively holding - that hearing loss in one ear may not constitute a disability within the meaning of the ADAAA. It did so by finding that although Mengel could not prove that her partial deafness was a disability, Mengel was able to show that she may have been “regarded as” disabled, because her managers were aware of her impairment. However, according to the court, Mengel’s prima facie case failed, largely because the company became aware of her impairment in 2007 and did not implement her lay-off until 2009. The court found that this long time gap refuted the necessary causation, and dismissed Mengel’s case as a matter of law.

It would be unwise to draw any conclusions here regarding whether partial deafness can definitively be excluded as a “disability” under the ADAAA. The broadened definition of that term, along with the Act’s stated intention of including more individuals within its purview both lead to the conclusion that no blanket distinctions should be drawn from this district court decision. Attorneys for both employers and employees will be interested in an appellate determination of this issue.
 

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Is the ability to be licensed to drive a commercial vehicle an “essential function” of a warehouse manager’s position, even though that manager rarely is required to drive? According to the 8th U.S. Circuit Court of Appeals, that answer depends largely upon the job description developed by the employer, and not on the employee’s specific personal experience in the job. Knutson v. Schwan’s Home Service, Inc., 8th Cir., No. 12-2240, (April 3, 2013).

Jeffrey D. Knutson was employed as a Local General Manager (LGM) of a depot for Schwan’s Home Service, Inc. until 2009, when his employment was terminated. That termination was based upon the fact that Knutson was no longer able to meet the physical standards set forth in the job description for his position. Although Knutson sued Schwan’s under the Americans with Disabilities Act, both the district court and the Eighth Circuit determined that Knutson was not qualified for protection under the ADA, because he was unable to fulfill the essential functions of his job under any circumstances.

During his employment with Schwan’s, Knutson excelled at his job as an LGM. Although the position description for that job specifically states that an LGM must meet the Federal Department of Transportation (DOT) eligibility requirements, which require such individuals to be “DOT qualified” to drive commercial motor vehicles, Knutson had driven a truck “less than 50 [times]” since becoming a manager in 2007.

In March 2008, Knutson suffered a serious eye injury, after which he was unable to obtain the medical waiver necessary to qualify him for the required DOT certification. Because of that fact, Schwan’s placed Knutson on a 30-day leave of absence to either obtain the required certification or find a non-DOT-qualified position within the company. Knutson was unable to do either within that 30 day period, and was discharged from his job. Knutson filed a lawsuit, claiming that he was qualified as disabled under the ADA, which protects an individual who is able to undertake the essential functions of his or her position, with or without an accommodation. The lower court dismissed Knutson’s claim, finding that the requirement to hold a commercial driver’s license is an essential function of the manager’s position. Because Knutson could not perform that essential function under any circumstance, he was not qualified for protection under the ADA. That decision was upheld by the Eighth Circuit.

Knutson claimed that being DOT qualified to drive a delivery truck was not essential to his job, because he rarely drove a commercial vehicle. However, the Eighth Circuit pointed out that under the ADA, an employer’s judgment about what constitutes an essential function is “highly probative.” In this case, the position description for the LGM position specifically required the commercial driver’s license. While managers do not necessarily drive the delivery trucks every day, or even every week, they are required to be able to driver those trucks when needed, and on occasion must step in and take over a route when a driver is absent. Schwan’s was able to show that if managers did not drive trucks, less product would be delivered and less driver training would be provided, both affecting sales. Based on that information, the Court determined that although Knutson claimed to have driven trucks infrequently, Knutson’s specific experience “is of no consequence in the essential functions equation.” Instead, in determining the essential functions of the LGM position, the Court relied on the written job description, the company’s judgment, and the experiences of all LGMs, and upheld summary judgment in favor of the company.

This case underscores the importance of clear, complete, and up-to-date, job descriptions, and documentation of business-related reasons for decisions affecting employees. In this case, the Court’s determination was influenced by the fact that the company consistently had documented and enforced the DOT-related requirements for its LGMs, and further was able to proffer evidence showing that the essential function was directly related to financial elements of the business’ success.
 

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In a non-precedential opinion, the 3d U.S. Circuit Court of Appeals recently upheld a hospital’s firing of a security guard who had admitted that he was a recovering drug addict. Because that firing was based upon the fact that the employee previously had denied prior drug or alcohol addition/treatment, the court found that the hospital’s reason for the termination – the employee’s dishonest disclosure – was not a pretext for discrimination. Reilly v. Lehigh Valley Hospital, 3d Cir., No. 12-2078, March 29, 2013.

Robert Reilly was employed by Lehigh Valley Hospital (LVH) as a part-time Security Officer from August 2006 until May 2, 2008. During the application process, Reilly was asked to respond to the following two questions: (1) “Have you ever been recognized as or diagnosed with alcoholism or drug addiction?” and (2) “Have you ever been or are you now being treated for alcoholism or drug addiction?” Reilly answered “No” to both of the questions, and left blank a question that asked for information on any such treatment. A handwritten note on the application says “denies drug/alcohol addiction.” The application form included a statement that “falsifying of this information could result in withdrawal of the employment offer or if subsequently discovered termination of employment.”

On April 5, 2008, Reilly was admitted to the Emergency Room of LVH to receive treatment for a work-related eye injury. During that visit, Reilly disclosed to the treating physician a history of narcotics use and admitted that he was a recovering addict. When an LVH employee sustains a possible work-related injury and is treated by LVH, the medical records routinely are furnished to the hospital’s Health Services Department, which manages and administers workers’ compensation issues. Upon receiving Reilly’s records, Health Services informed LVH’s Human Resources Department of Reilly’s statement regarding his addiction and recovery. Reilly was fired on May 2, 2008 for failure to disclose the information during the application process.

Reilly filed a lawsuit against LVH alleging disability discrimination. During a deposition in the case, Reilly testified that following a conviction for DUI in 1995, he attended approximately 40 hours at a drug and alcohol treatment center as part of an Accelerated Rehabilitation Disposition program. He testified that he did not consider himself to have received addition treatment at that point, because he continued to abuse drug and alcohol after that time.

LVH’s motion for summary judgment in the case was granted by the district court, and Reilly appealed. The Third Circuit upheld the decision. In applying the now well-known McDonnell Douglas burden-shifting framework, the Third Circuit found that Reilly was able to set forth a prima facie case of discrimination, and that LVH was able to proffer the required legitimate business reason for its action. The district court found – and the Third Circuit agreed – that Reilly failed to satisfy the third step by adducing sufficient evidence to show that LVH’s reason was simply a pretext for discrimination.

The Court viewed the primary issue in the case as “whether the decision-maker at LVH could regard Reilly’s responses as dishonest.” According to the Court: “The answer to that question is resoundingly, ‘yes.’” The evidence established that Reilly received 40 hours of addiction treatment, and that he regularly attended and still attends AA and NA meetings. In spite of those facts, Reilly answered “no” to questions on the employment application asking whether he had ever been or currently was “recognized as,” diagnosed with,” or “treated for” alcohol or drug addiction. Given that circumstance, Reilly is unable to prove that LVH’s proffered reason for his firing – dishonesty – was a pretext for discrimination.

This case is not a license to fire individuals simply because they are or have been in drug or alcohol rehabilitation. In fact, it is important to recognize that under the American with Disabilities Act, an individual who is in recovery for drug or alcohol addiction may be considered to be protected under the Act. However, this case does point out the fact that language on an employment application clearly informing applicants that dishonest responses can lead to non-hire or even firing will be upheld by a court.
 

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The 8th U.S. Circuit Court of Appeals recently held that jury was justified in finding that an employer is not required to engage in an onsite evaluation to interactively create a reasonable accommodation for a disabled employee, if a treating physician’s restrictions would prevent that individual from performing those essential functions at all. Hohn v. BNSF Railway Co., 8th Cir., No. 12-1041, February 28, 3013.

Frank Hohn was hired by BNSF Railway Co. (“BNSF”) in 1997 as a locomotive machinist at the railway’s facility in Alliance, Nebraska. As a locomotive machinist, Hohn performed servicing, maintenance, and troubleshooting functions, which included frequent use of machinery, walking on uneven surfaces, stooping, kneeling, climbing ladders, and working in a 360 degree visual field, meaning that Hohn worked “within, around, over and under locomotives.”

In 2004, Hohn’s supervisors and co-workers noticed that Hohn was displaying signs of vision impairment, including walking slowly and cautiously, missing handrails onto which he tried to grab, and not seeing people approaching from the side. Hohn ultimately was diagnosed with advanced stage retinitis pigmentosa, a degenerative eye disease which causes tunnel vision and often leads to blindness. Hohn’s optometrist recommended restrictions for Hohn that included no climbing or working on unprotected heights, no operating vehicles or machinery, and no jobs that required more than 15 degrees of visual field.

BNSF’s medical field officer, Dr. Clark, reviewed the restrictions, and agreed with them. In light of those restrictions, it was determined that Hohn was unable to perform the essential functions of the machinist position. Although the company’s regional medical director supported an on-site evaluation to determine whether any accommodations existed that could return Hohn to work, Dr. Clark concluded that Hohn could not perform an on-site evaluation without running afoul of the restrictions imposed. Hohn was not allowed to return to work, and ultimately filed a lawsuit alleging violation of the Americans with Disabilities Act and the Nebraska Equal Opportunities Commission. His case went to trial at which the jury found in favor of BNSF on the disability discrimination and retaliations claims. (Hohn also filed a whistleblower claim that was dismissed on summary judgment and, therefore, was not heard by the jury.)

The Eighth Circuit upheld the jury verdict, finding that in order for Hohn to have prevailed at trial, the jury would have had to find that Hohn could have performed the essential functions of his machinist position, with or without accommodation. However, because Hohn’s restrictions - imposed by his own doctor - essentially precluded Hohn from returning to the workplace under any circumstances, the company was unable to develop or implement any accommodations that would have been consistent with the restrictions.

At trial, Hohn disputed the restrictions, testifying that he could have performed the duties. However, he failed to provide any medical evidence of that fact or to contradict the restrictions imposed by his own optometrist. The jury verdict, then, was not “against the weight of the evidence,” because, according to the court, the ADA “does not require en employer to permit an employee to perform a job function that the employee’s physician has forbidden.”

While the rationale of this holding seems somewhat circular, the issue is straightforward. Under the ADA and parallel state statutes, an employee must be able to perform the essential functions of his position, with or without accommodation, in order to be employed. In this holding, the Eighth Circuit stated that because Hohn’s own doctor found that there were no circumstances under which Hohn could perform the essential functions of his position, BNSF was justified in assuming, from that fact, that no reasonable accommodation existed which would have allowed Hohn to return to work.

Employers should not draw from this case the conclusion that an employee with extensive medical restrictions can never be accommodated. To the contrary, had Hohn shown that there was an open position for which he was qualified and into which he could have moved, the result of the jury trial and, perhaps, the appellate decision, may have been different. This decision was based primarily on the fact that the Eighth Circuit’s review in this case was to determine whether or not the jury’s verdict was against the weight of the evidence. The court found that it was not.
 

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Employers are aware of the fact that the Americans with Disabilities Act (ADA) requires them to engage in an interactive process in order to determine whether a disabled individual can be accommodated to assist him or her in performing the essential functions of a job. In determining the essential functions of a position, most employers assume that physical presence and arrival at work at a consistent time are essential functions of most jobs. However, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis of whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.

Rodney McMillan has schizophrenia and, with calibrated medication, has been employed by the City of New York, first for ten years as a case manager with the City’s Human Resources Administration (HRA) and then, since 1997, as a case manager for the HRA Community Alternative Systems Agency (the Agency). In that job, McMillan conducts home visits, processes social assessments, and meets with clients on a daily basis in the Agency’s office.

The Agency has a flex-time policy which allows employees to arrive at work between 9:00 and 10:00 a.m. (although, because of elevator wait-time, an employee is not considered late until 10:15), and leave between 5:00 and 6:00 p.m., so long as they work 35 hours each week, excluding a one-hour break for lunch. Tardiness can be “approved” or “disapproved” by a supervisor. When tardiness is approved, an employee may use sick leave or other “banked” time - additional hours worked - to cover the time missed in order to be paid for a full week of work. However, an employee who has no time banked, or does not wish to use banked time, simply is not paid for the missed time. Tardiness that is disapproved can lead to disciplinary action.

McMillan’s medication makes him drowsy and sluggish in the morning, which often makes him late for work, meaning he comes in after 10:15 in the morning. There is no dispute that McMillan’s inability to get to work on time is a function of the treatment for his condition. 
                                                                                                                                                                               For a period of at least 10 years prior to 2008, McMillan’s tardiness was either explicitly or tacitly approved. However, in 2008, his supervisor (Thornton), at the direction of her supervisor (Belthrop) refused to approve any more of McMillan’s late arrivals. McMillan then made a request for a later start time to avoid discipline for tardiness, but was told that a later start time was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present. McMillan also stated that he would be willing to work through his lunch hour and “bank” that time in order to make up for his late start. That suggestion also was rejected.

In May of 2009, McMillan was fined eight days’ pay for late arrivals. In December 2009, Belthrop recommended additional discipline based on McMillan’s “long history of tardiness,” and the City subsequently recommended that McMillan’s employment be terminated. Ultimately, the City reduced the recommended sanction from termination to a 30-day suspension without pay.

McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m. (the office actually is open until 10:00 p.m.), so he could arrive late and still work the required 35 hours a week.

The district court granted summary judgment for the City, and dismissed all of McMillan’s claims, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job. On appeal, however, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court did not conduct a fact-specific inquiry into McMillan’s situation. Instead, the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

However, the Second Circuit pointed out a number of circumstances that called that conclusion into question, including the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.

The take-away for employers in this case is that the Second Circuit’s reversal of the favorable decision for the employer was based on the fact that the lower court simply accepted the City’s assertion that McMillan’s requested accommodation of further variation to his work hours would have been an undue hardship for the City. An employer who is analyzing a disabled employee’s request for accommodation must be able to compile and present factual, statistical, or narrative evidence of the manner in which a proposed accommodation would create an undue hardship, in order to both effectively accommodate the employee in a fair and reasonable manner, and to defeat any potential failure-to-accommodate claim under the ADA.
 

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The use of light duty assignments to employees who are returning to work after recuperation from an illness or injury is an often used mechanism. The 7th U.S. Circuit Court of Appeals has held that neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) creates an obligation for an employer to provide light duty work to an individual who is unable – with or without accommodation – to return to the essential functions of his job. James v. Hyatt Regency Chicago, 7th Cir., No. 1:09-cv-07873, February 13, 2013.

Carris James began his employment with the Hyatt Regency Chicago in 1985 as a banquet steward, responsible for maintaining the cleanliness of banquet and food service areas, which included lifting pots and pans, and transporting trash containers around those areas. At that time, James informed Hyatt of his vision problem, which was correctable with eyeglasses and magnifying glasses. Hyatt accommodated James by increasing the print size of his work assignments and schedule.

In March 2007, James was punched in the eye during a non-work-related incident, and developed aretinal detachment for which he underwent surgery in the following month. When Hyatt’s human resources department learned that James’ absence was related to a medical issue, it  provided information to James regardingFMLA leave. On April 24, 2007, James’ physician, Dr. Scott, stated that James could return to “light duty” on May 10, but did not say for how long James would require that light duty assignment. On April 25, James requested FMLA leave, which was applied retroactively to include James’ prior absences.

On May 9, 2007, James provided to Hyatt additional paperwork that indicated that James was “unable to work in any capacity.” James subsequently received disability benefits based upon that information. In addition, on May 11, James submitted a medical certification to Hyatt stating that his condition could possibly lead to permanent incapacity.

James’ 12 weeks of FMLA ended on July 13, 2007, but the collective bargaining agreement between the union and Hyatt provided job-protected leave for up to one year from his original absence. In August, James submitted various paperwork to Hyatt, including one release that stated that he could return to work although “visually impaired,” and others in which Dr. Scott continued to represent that James was incapable of working in any capacity.

On September 25, James faxed a note to Hyatt from yet another doctor who stated that James could return to work with lifting and bending restrictions, which would have precluded James from returning to the steward position. Following that, Hyatt attempted to contact James seeking additional information, but no clarification was provided until January 2008, when Hyatt’s Workers Compensation and Safety Manager sent a letter directly to Dr. Scott, enclosing a return to work certification form, as well as a job analysis for the banquet steward position. Dr. Scott responded, stating that James could return to work, but could not complete any task that required better than 20/200 vision. Hyatt then met with James and scheduled a return to work in the same position, shift, and seniority level as before James’ medical leave.
 

In 2009, James filed a lawsuit, claiming that Hyatt had interfered with his FMLA leave and had discriminated against him under the ADA by failing to allow him to return to work on light duty in May 2007. The lower court’s decision to grant summary judgment in favor of Hyatt on both claims was upheld by the Seventh Circuit on appeal.

First, the Court quoted the language of the FMLA and stated that “if an employee cannot perform an essential function of [his] original position because of a physical or mental condition, the employee has no right to restoration to a different position under the FMLA.” While the FMLA requires an employer to restore an employee to the position held at the time the FMLA leave began, or to an “equivalent” position, that law does not require an employer to restore an employee to a light duty (which clearly is not an equivalent) position simply to allow him or her to return prior to the expiration of the leave time allowed.

Next, the Court addressed James’ ADA claim that Hyatt had failed to accommodate him by pointing out that Hyatt had accommodated James’ visual impairment throughout James’ employment, beginning in 1985. It also pointed out that the “conditional” and, at times, contradictory releases being provided by James, along with the application for disability benefits which stated that James was unable to work in any capacity, did not provide information to Hyatt sufficient for the company to understand the true nature of James’ condition, or to formulate or implement a reasonable accommodation.

This case provides a road map to employers faced with the increasingly frequent situation in which there are both FMLA and ADA issues. First, once the company learned that James’ absence was medically related, it provided FMLA paperwork. During James’ leave, Hyatt requested medical updates in an attempt to understand if and when James could return to work, and to determine the extent of his medical impairment. When those updates were not forthcoming, and rather than make assumptions based on contradictory reports, Hyatt requested - directly from the medical provider - clarification of James’ medical condition, and included return-to-work certification forms as well as a detailed job description to allow the doctor to determine whether James could return to his position with or without accommodation under the ADA. It was the company’s action that ultimately led to James’ return to his position, and the company’s considered and persistent attention to the issues that led to a successful result in this case.
 

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In an unpublished opinion, the 6th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who refused to convert a light-duty position into a permanent job for a disabled employee.  Wardia v. Campbell County Regional Justice Dept. of Corrections, 6th Cir., No. 12-5337, January 3, 2013. In that case, a juvenile detention center employee who was unable to engage in the physical actions related to restraining juveniles in the facility was discharged, in spite of the fact that he asserted his ability to continue to work indefinitely in a light-duty position into which he had been placed on a temporary basis.

John Wardia became employed as a Youth Worker at the Campbell County, Kentucky, Juvenile Detention Center in 2003.  In that position, Wardia supervised and monitored the activities of juveniles committed to the facility, assisted with their “interpersonal skill development,” and engaged in various administrative tasks.  Youth workers are required to undergo a three-month long “safe-physical-management-skills” training upon hire, and participate in additional training on a monthly basis.  While physical restraint actions are not frequent, the written job description of the Youth Worker position lists the ability to perform physical restraints on juveniles as an essential function of the position.

In or around 2008, Wardia underwent surgery for a non-work-related neck injury.  Because his condition prevented him from performing physical restraint actions on the juveniles, Wardia requested, and was granted, the temporary accommodation of working in the detention center’s control room upon his return to work after surgery.  Subsequently, Wardia’s physician provided information that Wardia’s condition would be permanent, and Wardia was placed on leave without pay on October 18, 2009, to be considered as having resigned if he could not return to work within a one-year period.

Two weeks prior to the expiration of that one-year period, Wardia requested permanent assignment to the control room position to which he previously had been assigned as light-duty, asking for that assignment as a reasonable accommodation for his disability.  After a pre-termination hearing, the County’s Department of Juvenile Justice decided against making the assignment on a permanent basis, and issued a final notice of termination to Wardia.  Wardia filed a lawsuit alleging disability discrimination, and arguing that the restraint of juveniles was not, in fact, an essential function of the Youth Worker position, since it was rarely necessary for employees to restrain the juveniles.  Further, Wardia argued that even if that function was determined to be essential, the permanent assignment to the control room was reasonable.

The lower court disagreed with Wardia’s assertions, and granted the County’s motion for summary judgment.  That decision was upheld by the Sixth Circuit, who made two notable holdings: (1) in assessing the “essential function” designation of an activity that is rarely performed, a court will look to the seriousness of the consequences of non-performance; and (2) temporary light-duty positions established for recuperating employees need not be converted into permanent positions.

In Wardia’s circumstance, the court determined that the ability to perform physical restraints on the juveniles was, in fact, essential.  The potential for physical confrontation exists on a daily basis at the facility, and a staff member who is unable to restrain a juvenile may subject him-or herself and the facility to liability from injured employees or juveniles.  Wardia’s assertion that certain workers needed assistance with the restraint function was unconvincing to the Court, which stated that “Simply because some employees more often and more capably perform a certain function does not make it any less essential for everyone else.”  Because Wardia was unable to disprove the “essential” nature of the physical retraint function, the Court proceeded to address the question of whether Wardia’s request for accommodation was reasonable.

Reasonable accommodation analysis under the ADA requires that a plaintiff propose an accommodation that is objectively reasonable, thereby shifting the burden to his or her employer to prove that the request is unreasonable under the specific facts.  Wardia made two requests: to work all functions other than the physical restraint function, which would have to be handled by co-workers; and permanent assignment to the light-duty control room position.  The Sixth Circuit held that neither was reasonable.  First, it determined that the need for assistance with the essential physical restraint function is not reasonable because the ADA does not require employers to accommodate individuals by shifting an essential job function to others.  Any other approach would render the “essential function” step of the analysis as meaningless.  Second, the Court held that permanent assignment to a light-duty or rotating position is not reasonable, as it would shift Wardia’s essential job functions to others, leaving his co-workers with the physical restraint functions, as well as his direct juvenile contact functions.  The Court, citing a prior Sixth Circuit decision, found that temporary light-duty positions for recuperating employees need not be converted into permanent positions. To hold otherwise would frustrate the purpose of the ADA.

While this case arguably assists employers in an often difficult situation of whether to return an employee to work after a lengthy medical-related absence, the fact that the employer in this case was a juvenile detention facility and that the safety of residents and employees was one of the factors in the essential nature of the function at issue may have had a role in the ultimate decision. Employers should react carefully when faced with similar circumstances, and should thoroughly and objectively evaluate whether a function is actually essential.  However the Court’s decision regarding the necessity for making a temporary light-duty position into a permanent role is more universally applicable, and can be considered - again, with objective rationale and documented reasoning - in most circumstances.
 

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The 6th U.S. Circuit Court of Appeals recently addressed an issue of first impression, finding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, 6th Cir., No. 11-2276, January 10, 2013. In addition, however, the Court made a number of other, more generally applicable observations. The most noteworthy is a statement that seems to create an obligation on the part of an employer to fully understand the background and experience of any expert who is relied upon to assist in determining whether a disabled individual can be accommodated in a particular position.

Nicholas Keith has been deaf since his birth in 1980. He communicates primarily by using American Sign Language (ASL), but can detect noises – including alarms, whistles, and loud voices – through a cochlear implant. In 2006, Keith enrolled in and successfully completed a junior lifeguard training course conducted by Oakland County, Michigan, using an ASL interpreter to relay verbal instructions to him. In 2007, Keith successfully completed the County’s lifeguard training course, again with the assistance of an interpreter, although Keith executed all lifesaving tasks and training techniques himself.

Upon successful completion of the trainings, Keith applied for a part-time lifeguard position at the County’s wave pool, asking only that an ASL interpreter be present at staff meetings and further classroom instruction. Katherine Stavale, the County’s recreation specialist, offered the position to Keith, contingent upon a pre-employment physical. At the physical examination, the County’s doctor, Paul Work, reviewed Keith’s medical history and stated to Keith’s mother, “He’s deaf; he can’t be a lifeguard,” adding that he (the doctor) would be sued if “something happens.”

Based on Work’s opinion, Stavale placed the offer on hold and contacted Ellis & Associates, a group of aquatic safety/risk management consultants used by the County regarding its water parks and lifeguard training program. Stavale discussed Keith’s situation with a client manager and a vice president from Ellis in an attempt to determine whether and how to accommodate Keith. Neither of those individuals had any education, training, or experience regarding the ability of deaf people to work as lifeguards, and did not research the issue. In spite of a 6-page outline prepared by Stavale setting forth accommodations that she believed could successfully integrate Keith, the consultants remained concerned about Keith’s ability to function effectively as a lifeguard. The client manager specifically stated that “without 100 percent certainty that [the proposed accommodations] would always be effective, I don’t think you could safely have [Keith] on the stand by himself.” Based on the input from Ellis, the employment offer to Keith was withdrawn.

Keith filed a lawsuit, claiming disability discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court granted summary judgment in favor of the County, finding that although Dr. Work’s cursory medical examination and conclusory decision about Keith’s ability to be a lifeguard did not constitute the “individualized inquiry” required under the ADA, the County’s own inquiries and discussions with Keith did so. The court also concluded that Keith failed to show that he could perform the “essential communication functions” of a lifeguard and that, therefore, there had been no violation of the statutes.

On appeal, the Sixth Circuit reversed that decision, stating that whether a job function is essential typically is a factual question for the jury, and not a legal question for a court on summary judgment. Further, it pointed out that unlike the consultants from Ellis & Associates, one expert who provided input on behalf of Keith worked extensively with hearing impaired individuals and was a certified training instructor who has worked with deaf individuals in the field of lifeguarding and aquatics, certifying over 1000 deaf lifeguards through American Red Cross training programs. Keith also provided testimony from a physician specializing in neurodevelopmental disabilities who had worked with hearing impaired individuals for over 30 years, and who stated an opinion that in a noisy swimming area, recognizing a potential problem is almost completely visually based. It was this doctor’s opinion that Keith’s deafness should neither disqualify him as a lifeguard nor require constant accommodation.

The Sixth Circuit found that the County initially had participated in an “interactive process” with Keith, compiling a list of ways in which he could be successfully accommodated in the lifeguard position. However, the County ultimately withdrew the employment offer after it consulted with Ellis & Associates, who based its advice on non-specific assumptions and generalizations regarding hearing-impaired individuals. The Court found that fact-based questions existed that were sufficient to reverse the lower court’s dismissal of the case, and to send it back to that court for a trial by jury.

In assessing the sufficiency of the County’s participation in the required interactive process, the Court made a statement that should get the attention of any employer who is involved in determining the reasonableness of an employee or applicant’s requested accommodation: “Because it strikes us as incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not, we direct the district court to consider [the question of why the County rejected Keith’s requested accommodation] on remand.” In other words, the County’s deference to its consultant’s opinion on the issue of how to accommodate Keith may vitiate the County’s compliance with the ADA’s requirement regarding the interactive process. Based on that statement, any employer relying on input from a third party to assess the reasonableness of accommodations requested by an employee or applicant should determine whether the input was obtained from an individualized assessment, or was simply based upon assumptions and non-specific information. Without an individualized review by the consultant, the employer could lose the benefit of its own initial participation in the required interactive process.

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Neither Title VII of the Civil Rights Act nor the Americans with Disabilities Act (ADA) specifically prohibits discrimination against individuals who may be victims of domestic or dating violence, sexual assault, or stalking. However, a recent fact sheet/guidance issued by the Equal Employment Opportunities Commission (EEOC) has employers scrambling to update anti-discrimination training to reflect the examples listed in that guidance, and to make managers aware of circumstances under which such individuals might be the targets of discrimination under those federal statutes. While discrimination in a particular situation must be determined through a case-by-case analysis of the facts, the EEOC sets forth numerous examples involving domestic violence and sexual assault victims, and which include disparate treatment, harassment and retaliation scenarios under both Title VII and the ADA.

The examples of employment scenarios that may violate Title VII include: an employer’s decision to terminate an employee who was subjected to domestic violence because of fears related to the “drama battered women bring to the workplace” (disparate treatment); a supervisor who learns that an employee recently was subjected to domestic abuse and, viewing her as vulnerable, begins to make sexual advances toward her (harassment); and an employee who, subsequent to filing a complaint alleging that she was raped by a manager while on a business trip, is reassigned to less favorable projects (retaliation).

Examples of decisions that may violate the ADA are similarly varied and, in most cases, straightforward. They include: an employer who learns that an applicant was a witness in a rape prosecution and received counseling for depression, and decides not to hire her because she may need time off for further treatment of that depression (perceived disability); a supervisor who tells an employee’s co-workers about the employee’s PTSD resulting from incest (disclosure of confidential information); and an employee who tells her supervisor that she is going to complain about his dissemination of her medical information, and is told that if she does, she will not get a pay raise (retaliation).

However, the examples also include one scenario that may not immediately strike employers as a clear ADA violation: an employee who has no accrued sick leave and is not eligible for FMLA requests a scheduling change or an unpaid leave in order to get treatment for depression following a sexual assault during a home invasion, but is denied that leave because the company “applies leave and attendance policies the same way to all employees.” Because most employers typically are reminded by both HR and legal that employees should be treated in a consistent manner, and that individuals in protected categories should not be treated differently than non-protected similarly situated individuals, this scenario may not seem to be an obvious example of an ADA violation. However, a reasonable accommodation is a change in the way things usually are done and can include modified work schedules, reassignment to a vacant position, or time off for medical treatment. This last scenario clearly indicates that the EEOC has an expectation that employers will change their consistently applied leave and attendance policies, if such change is necessary to accommodate the need for psychological treatment stemming from an incident of sexual assault or domestic violence.

Employers should, in fact, begin to add the issues raised in the EEOC’s recent guidance to the anti-harassment and non-discrimination training that is provides to managers and supervisors, in order to avoid inadvertent violation of Title VII or the ADA. Fortunately, the EEOC’s Q&A format provides clear examples that easily can be incorporated in such training.

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The 8th U.S. Circuit Court of Appeals recently addressed an issue of concern frequently raised by employers: whether allowing an employee to move from rotating shifts to straight daytime work is a required “reasonable accommodation” under the ADA. Kallail v. Alliant Energy Corporate Services, Inc., 8th Cir., No. 11-2202, September 4, 2012. In that case, the Court held that the rotating shift was an essential function of the relevant job, and that therefore, the answer was No.

Terri Kallail was employed by Alliant Energy Corporate Services (AECS), and held the position of Resource Coordinator at a company Distribution Dispatch Center (DDC) in Cedar Rapids, Iowa. Employees at the DDC monitor the distribution of electricity, gas, and steam throughout a service area, and handle outages and other emergency situations to maintain the integrity of the systems. In order to provide adequate coverage, Coordinators at the DDC work in teams of two on 9-week schedules that rotate between 8- and 12-hour shifts, and between day and night shifts. The dual purposes of the rotating shifts were to provide adequate experience and training for the Coordinators, and to enhance non-work life by spreading the less desirable shifts among all Coordinators on a rotating basis.

Kallail is a Type I, insulin dependent diabetic. During the fall of 2004, she was having increased difficulties managing her diabetes while working the rotating shifts. In November of that year, her physician completed a medical certification that recommended that Kallail work only straight day shifts. That request was denied in a letter in which AECS stated that the Coordinator’s essential functions include rotating shifts to support operations 24 hours a day, 7 days a week to meet company safety requirements. However, as an alternative, AECS said that it would consider reassigning Kallail to a vacant position with a straight day shift. In August 2005, the company identified three such positions, all of which were rejected by Kallail, because one required walking, which she had difficulty with, one paid less than the Coordinator position, and the third would have required to her relocate or commute a significant distance.

In September 2005, Kallail took FMLA leave for surgery. While on leave, she applied for a position two job grades higher than the Coordinator position, and was unsuccessful. Kallail returned from leave in February 2006 with a restriction that she work only an 8-hour day shift schedule until May. At that point, AECS gave to Kallail a temporary light-duty assignment that was different from her Coordinator duties. When the light-duty assignment expired, Kallail’s physician again recommended that Kallail be permanently limited to straight day shifts to protect her from medial risks and complications in the future. Although AECS offered a number of other positions to Kallail, Kallail refused them and instead, began to receive long term disability benefits in January 2007.
She then filed a charge of discrimination with the EEOC, and ultimately filed a lawsuit, alleging that AECS failed to provide her with a reasonable accommodation. The district court granted summary judgment in favor of AECS, and that decision was upheld by the Eighth Circuit on appeal.

The American with Disabilities Act (ADA) makes it unlawful for a private employer to discriminate against any “qualified individual on the basis of a disability.” Discrimination under the ADA specifically includes failure to make a “reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.” To prove oneself to be a qualified individual under the ADA, an employee must have the requisite skill and training for the position, and must be able to perform the essential functions of the position with or without accommodation.

In reviewing the lower court’s dismissal of the case, the Eighth Circuit began by reviewing the issue of whether Kallail could perform the essential functions of her Coordinator position, with or without an accommodation – if she could not, she would be unable to prove herself to be a “qualified individual with a disability” who was entitled to the protections of the ADA.
The Court first determined that the rotating shift was an essential function of the Coordinator position. It found that AECS had included the rotating shift in its written job description, and that when the company had discussed with employees a proposal for creating two permanent straight day shift positions, employees objected. (Avoiding employee complaints and maintaining morale are legitimate reasons for a company’s scheduling decision.) Further, because courts allow companies to determine the most productive or efficient shift schedule for a facility, the Eighth Circuit determined that AECS’s designation of the rotating shift schedule as a critical element of the Coordinator position made that schedule an essential function of the position. Because Kallail could not work a rotating shift, she was unable to fulfill the essential function of her job without an accommodation.

The Eighth Circuit then looked at whether Kallail could do the job with an accommodation. To show that such was possible, Kallail would have to proffer a reasonable accommodation that would allow her to perform the essential functions of the job. The reasonable accommodations proffered by Kallail were the straight day shift, and the promotion to a higher grade day-shift job. The Court began by pointing out that while job restructuring is a possible accommodation under the ADA, an employer does not have to “reallocate or eliminate the essential functions of a job to accommodate a disabled employee.” Therefore, Alliant did not have to allow Kallail to work the straight day shift that she requested. Next, the Court stated that “reassignment to a vacant position may be a reasonable accommodation.” Because Alliant offered a number of positions to Kallail, and Kallail did not provide evidence that the positions were inferior, or that a more suitable job was vacant, there was no requirement that Alliant provide a promotion to put Kallail into a day-shift job.

This case is an important one for employers because the company in this situation provided a number of opportunities to allow Kallail to return to work under circumstances that made allowance for her impairment. Further, it had a detailed written job description that spelled out the essential functions of the job, precluding any dispute on that issue. Finally, it engaged in the required interactive process by working with Kallail to try to identify other positions that were available and for which she was qualified. Kallail’s unwillingness to accept those positions absolved AECS from liability in this circumstance.
 

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An issue that confounds employers on a regular basis is whether the discharge of an employee who is unable to return to work after a medical leave will violate the American with Disabilities Act (ADA). Most employers understand their obligation to engage in an interactive process to determine a reasonable accommodation that will assist the employee in returning. But questions often arise regarding whether to allow the employee a reprieve from undertaking the essential functions of the job to which he or she is returning, and whether that reprieve can be for an indefinite period of time.

The 10th U.S. Circuit Court of Appeals recently addressed that question in the context of a county employee who, because of back surgery and an ongoing joint dysfunction, was unable to undertake the essential functions of her position as an Adult Intensive Supervision Officer. In that case, the court determined that the county’s decision to discharge the employee when she was unable to return to work after a medical leave did not violate the ADA. Robert v. Board of County Commissioners of Brown County, Kansas, et al, 10th Cir., No. 11-3902, August 29, 2012.
Catherine Robert’s job as a supervisor of felony offenders included 18 “essential functions,” as listed in her written job description. Those functions included performing drug screenings, ensuring compliance with court orders, testifying in court, and “field work,” which consisted of visiting the homes of individuals who had been released from prison to assist them in their reentry into society. In 2004, Roberts was diagnosed with sacroiliac joint dysfunction, which ultimately required surgery, after walking became impossible for her. In the weeks immediately prior to the April 2004 surgery and during her recovery, Roberts was allowed to work from home, auditing case filed for closed cases. During this time, she could not engage in field work, and was unable to supervise drug screenings. Instead, that work was shouldered by her co-workers, creating tension within the small group, ultimately leading to the resignation of one member.

Roberts returned to work in July or August 2004, and was able to return to all of her job duties. Unfortunately, in November 2005, Robert fell down a flight of stairs at work and required another surgery, which occurred in April 2006. Again, Robert was unable to do field work or drug screenings and her co-workers assumed those duties. After her surgery, Robert took FMLA leave which lasted until July 5, 2006, at which point, Robert still was unable to return to work, although she also had exhausted her sick and vacation leave. Although the evidence is unclear as to the extent of the information provided by Roberts to the county, there was no documentary evidence that Robert would be released to work in the near future; there was, however, testimony from Robert that she could not perform field work unaccompanied, and that she would be unable to walk without assistance for some time to come. On July 31, the county commissioners decided to terminate Robert’s employment, because she was unable to return to work after her leave ended.
Robert filed a lawsuit which included a claim under the ADA. The lower court granted summary judgment on the county’s behalf on that claim, and Robert appealed. The Tenth Circuit upheld the dismissal, finding that Robert was unable to set forth a prima facie case of discrimination under the ADA because she could not show that she was qualified to perform the essential functions of her job with or without accommodation. It first addressed the fact that Robert could not perform the essential functions that were included in her job description without accommodation, because of her impairment. The Court pointed out that the county’s willingness to excuse Robert’s inability to perform site visits during a fairly lengthy - but ostensibly temporary - period of time in 2004 was not evidence that those duties were nonessential. According to the Tenth Circuit, to give weight to that argument would “perversely punish employers for going beyond the minimum standards of the ADA.”

The Court next addressed the fact that Robert would have been qualified to return to work had she been able to perform her job duties with a reasonable accommodation. However, the only potential accommodation that would have allowed her to do that in July 2006 was a reprieve from the essential functions of the job. The Court pointed out that while a brief leave of absence for medical treatment or recovery can be a reasonable accommodation, there are two limits on the “bounds of reasonableness” for that leave. First, the employee must provide an estimated date on which he or she can resume those duties. Without that, an employer is unable to determine the reasonableness of the request. Second, the leave request must assure that the essential functions can be undertaken in the “near future.” Although the Court did not specify how “near” that future must be, it cited a case in which a six-month leave request was too long to be a reasonable accommodation. The Court then held that Robert’s needed accommodation exceeded both criteria for reasonableness, because Robert failed to provide any definite date on which she could return to field work, which would require her to be fully mobile.

One of the critical issues here is that the case turned on the “essential functions” of Robert’s position, and her failure to provide evidence that she could undertake those functions within a reasonable time frame. Importantly, the Court gave primary consideration to the employer’s definition of the “essential functions,” pointing to the written job description in which those functions were listed. The importance of written job descriptions in this scenario cannot be overstated. Employers should assure that such descriptions should be reviewed regularly to assure that they are accurate, objective, and thorough, in order to allow their use in cases such as this one.
 

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The Americans with Disabilities Act (ADA) prohibits employers from requiring a “medical examination” and from making inquiries about the nature or severity of an employee’s possible disability, unless such exam or inquiry is shown to be “job-related and consistent with business necessity.” Most employers understand this issue as it applies both to medical examinations of current employees and to post-offer pre-employment physicals. Many of those same employers, however, may not have considered the ADA ramifications of asking an obviously distressed employee from seeking mental health counseling. That particular issue now is in the spotlight: the 6th U.S. Circuit Court of Appeals recently held that an employer’s directive to an employee to see a mental health counselor as a condition to keeping her employment constituted a medical examination under the ADA. Kroll v. White Lake Ambulance Authority, 6th Cir., No. 10-2348, August 22, 2012.

Emily Kroll began her employment with White Lake Ambulance Authority (WLAA) as an EMT in September 2003. Kroll was considered to be a good employee until becoming romantically involved with a co-worker, after which her supervisor and office manager received reports from other WLAA employees about Kroll’s “well being.” Subsequently, the office manager told Kroll that she thought Kroll could benefit from talking to a mental health care provider and Kroll agreed to do so. A few days later, however, the then-director of WLAA met with Kroll and Kroll’s father to discuss an incident between Kroll and a co-worker in which Kroll was alleged to have been “screaming” on the phone with a male acquaintance while she was driving an ambulance in “emergency status” (with lights and sirens) containing a patient. At that point, the director told Kroll that she must attend mental health counseling in order to continue her employment with WLAA. Kroll said she would not attend counseling, left the meeting, and never returned to work at WLAA.
Kroll ultimately filed a lawsuit alleging violations of the ADA, retaliation, and Title VII. The lower court granted WLAA’s motion for summary judgment on all counts, concluding that because mental health counseling does not constitute a “medical examination” under the ADA, WLAA’s requirement of mental health counseling as a condition of continued employment did not constitute a violation of the ADA.

The issue addressed on appeal to the Sixth Circuit was whether the counseling that Kroll was instructed to attend constitutes a “medical examination” under the ADA. Under that statute, employees can be instructed to undergo medical examinations only in certain limited circumstances, confined to “job-relatedness” and “business necessity.” Unless an employer can show that a request for medical examination is supported by such criteria, the request could be viewed as a violation of the ADA. The reason for that, simply put, is that employers are not allowed to ask about an employee’s possible disability, and then use that information to make arbitrary decisions related to the continuation of the individual’s employment, based on that information.
Here, the Sixth Circuit did not address the issue of job-relatedness/business necessity, because that issue is reached only if there has been a request for a “medical examination.” Instead the Court, in an extremely detailed review of the available guidance and case law, determined that, under the criteria set forth by the EEOC for analyzing a test or procedure, a psychological test designed to reveal mental illness or to diagnose mental health issues is a medical examination under the ADA because, in the Court’s words, the “uncovering of mental-health defects at an employer’s direction is the precise harm that [the ADA] is designed to prevent . . . .” Although the Court reversed the district court’s summary judgment in favor of WLAA, it also remanded the case to that court for a determination of whether WLAA’s request for medical examination of Kroll was job-related or was based upon a business necessity.

There are three points of which employers should be aware. First, under this analysis, the fact that an employer’s intentions are “disability neutral” and do not necessarily align with the basic purpose of the test being administered does not save the test from falling under the definition of “medical examination” under the ADA. (Here, WLAA said that whether or not the mental health counseling had revealed a psychological impairment, the purpose was simply to assist Kroll in being able to do her job effectively.) Second, and importantly, all individuals, whether disabled or not, may bring a lawsuit in aid of enforcing the ADA on this issue. Third, and finally, an employer that decides to require a mental or psychological review of an employee’s health or mental status should assure that there is a business related reason for that request, and that such reason is fully and objectively documented.
 

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“Direct evidence” is evidence that, if believed, leads to the conclusion that discrimination was at least one motivating factor in an adverse employment action. An employer’s termination letter, stating that the employee was being terminated due to her inability to do her job during a medical leave, was “direct evidence” of discrimination sufficient to support summary judgment in her favor and against her employer. Coffman v. Robt. J. Young Co, Inc., No 3:10-cv-001052, MDTN, May 14, 2012.

Catherine Coffman began working for Robert J. Young Company (RJYC) in 1994. From 1999 until 2009, she worked as a copy center operator, making copies, printing and scanning documents, assisting and conducting machine repair, and providing customer service. On April 25, 2009, Coffman was in a non-work-related motorcycle accident, in which she was severely injured. Based upon her injuries, Coffman received 12 weeks of FMLA leave, during which she remained in communication with her employer, providing regular medical updates. At the conclusion of her leave, Coffman informed RJYC that she still could only use one hand/arm, in response to which she was told that she could return in a sedentary job with equivalent pay. Coffman refused that position, and took disability leave during which she unwent physical therapy and continued treatment to improve her condition. On October 28, 2009, she then was released by her doctor to return to work on November 23 with a 10-pound lifting restriction, and limitations on pushing, pulling, and overhead lifting,

Although Coffman felt that she could have performed her job duties at that time with minimal accommodation, RJYC’s human resource (HR) director and the company’s general counsel decided to fire her at that point, and did so without first engaging in the required interactive process required under the Americans with Disabilities Act (ADA), and without obtaining any additional medical information regarding Coffman’s condition or limitations. Instead, on November 10, 2009, Coffman received a letter stating that “given [that] you are unable to perform the tasks of your job, we have found it necessary to hire someone to fill the vacancy created by your need to take long-term disability.” The letter further stated that “[d]ue to your long term disability we must terminate your employment.”

Coffman filed a lawsuit against the company, alleging that she was fired in violation of the ADA. At the close of discovery, the company filed a motion for summary judgment, arguing that Coffman was not disabled and, therefore, there could be no ADA violation. Coffman filed a cross-motion for summary judgment, alleging that the company fired her because it “regarded” her as disabled, which also is a violation of the ADA. Coffman pointed to her termination letter as “direct evidence” of the company’s unlawful conduct. She also cited the HR director’s deposition testimony that the employee was terminated based on the company’s assumption that she could not (or would not) come to work, as well as the deposition testimony of the company’s general counsel that “you can either work or you’re receiving long-term disability benefits which say I can’t work, I need long-term disability benefits.” Based upon this testimony and evidence, a reasonable jury could find that the decision to fire Coffman was motivated, at least in part, by her disability or perceived disability. The district court therefore denied the company’s motion for summary judgment, and granted Coffman’s partial motion for summary judgment on her ADA claim.

In this case, the court granted the employee’s motion, which means that the court determined that there was no real question that the company’s decision to terminate Coffman was based, at least in part, on her actual/perceived disability. While the company pointed out a number of factors that it believed supported its own arguments, the reality is that its own poor word choice in the termination letter led to the company’s failure to have the case dismissed as a matter of law at the summary judgment stage, and to a determination that could lead to legal liability in this case. Because this decision was made by a Tennessee district court, it can be appealed to the 6th U.S. Circuit Court of Appeals. However, the case sends a clear message to employers to assure that terminations are based upon non-discriminatory business-related objectives, and that written notification of employment status clearly reflects those legitimate business reasons.
 

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The Federal Circuits currently are split on the issue of whether the ADA requires reassignment of disabled employees to vacant positions when a more qualified candidate exists, with the 10th Circuit and the District of Columbia Circuit holding that the ADA creates preferential treatment for disabled candidates, and the 7th and 8th Circuits holding that while such reassignment may be a reasonable accommodation, the ADA does not obligate employers to reassign a disabled individual if a better qualified applicant exists.

Recently, a panel of the 7th U.S. Circuit Court of Appeals again addressed the issue, and found that prior Seventh Circuit decisions obligated it to find that the ADA does not establish preferential treatment for disabled individuals. EEOC v. United Airlines Inc., 7th Cir., No.11-1774, 3/7/12. In that case, the Equal Employment Opportunity Commission sued United Airlines (UA), based upon UA’s Reasonable Accommodation Guidelines. Those guidelines specifically stated that while transfer to an equivalent or lower-level vacant position may be a reasonable accommodation, the transfer process was a competitive one, and that a disabled employee will not automatically be placed into a vacant position. Under the Guidelines, if a non-disabled individual was more qualified that a disabled applicant, the non-disabled person would be awarded the position. (The policy did state that a disabled employee could submit an unlimited number of transfer applications, and that he or she would be guaranteed an interview and would be given “priority consideration” over a similarly qualified candidate. However, the company reserved the right to hire the most qualified candidate for the position.)

The EEOC brought a lawsuit challenging those Guidelines, and arguing that the ADA requires that a disabled person be advanced over a more qualified nondisabled candidate, “provided that the disabled person is at least minimally qualified to do the job, unless the employer can show undue hardship.” However, the Seventh Circuit previously had rejected that assertion in the case of EEOC v. Humiston-Keeling in 2000, stating that the ADA “does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.”

Under the concept of stare decisis, judges are obliged to respect the precedents established by prior decisions of the same court. The Seventh Circuit panel hearing the United Airlines matter was bound by the Court’s earlier decision in the Humiston-Keeling case. In Humiston-Keeling, an individual could not perform a conveyor belt job, due to an injured arm. Although she applied for a number of clerical positions, the employee was not hired for any of them, because – according to the employer – better qualified candidates were chosen. In Humiston-Keeling, the Seventh Circuit rejected the EEOC’s argument and held that the ADA did not require preferential hiring if a more qualified applicant existed.

In an interesting twist, however, the panel urged full court review of the issue, stating that “the present panel of judges strongly recommends en banc consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive . . . .” Based upon that statement, it seems evident that the Seventh Circuit may be inclined to follow the 10th and D.C. Circuits in holding that an employer is obligated to reassign a disabled individual to a vacant position, so long as the individual is minimally qualified for the position, and there is no undue hardship created by that placement.

Because this is an unsettled issue, employers should be cautious when making decisions regarding the reassignment of disabled employees, and should fully document the reasons for such decisions to assure compliance with the ADA.
 

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On February 28, 2012, the Equal Employment Opportunity Commission (EEOC) released two publications addressing the rights of military veterans with disabilities under the Americans with Disabilities Act (ADA), as part of its efforts to aid such veterans in the transition back into civilian employment.  According to government statistics, three million veterans have returned from military service over the past 10 years, and another 1 million veterans are expected to return to civilian life over the next five years.  The EEOC’s revised “guide for employers” explains how legal protections for veterans with disabilities compare between the ADA and the Uniformed Services Employment and Reemployment Rights Act (the USERRA) and how employers can prevent disability discrimination and provide reasonable accommodation for returning veterans. The guide includes information on organizations that can help employers to find qualified veterans for jobs, and aid in developing accommodations for veterans’ medical and psychological impairments.

The USERRA prohibits employers from discriminating against employees (or applicants) for employment on the basis of their military status or military obligations. It also protects reemployment rights for those employees who leave their civilian jobs to serve in the uniformed services, including service in the U.S. Reserve forces and National Guards, and attempt to return after completing that service. In addition, under the USERRA, employers must make "reasonable efforts" – including training and re-training - to help each returning veteran to become qualified to perform his or her employment duties. The USERRA applies to all veterans, not just those with service-connected disabilities, and to all employers regardless of size. Reemployment rights of returning veterans are spelled out on the Department of Labor’s website at www.dol.gov/vets. The EEOC’s recently released “guide for wounded veterans” answers questions regarding veterans with service-related disabilities and their legal rights when seeking to enter or re-enter the civilian labor force.

The EEOC’s publications update guides that originally were published in February 2008, prior to the amendments to the ADA which took place in January 2009 (the ADAAA), and reflect changes stemming from those amendments. The ADAAA makes it easier for veterans with a range of impairments - specifically including traumatic brain injuries and post-traumatic stress disorder - to obtain the reasonable accommodations that will allow them to return to work or successfully apply for work. In addition to efforts by governmental agencies like the EEOC, returning veterans with impairments are being aided by non-profits, including the Wounded Warrior Project, which work to raise public awareness to the needs of injured service members.

According to Jay Glunt, shareholder in the Pittsburgh Office of Ogletree Deakins, the recent EEOC publications indicate a focus by the Commission on employers’ efforts to meet the unique needs of veterans with disabilities in making the transition back to civilian work-life. Glunt recommends that knowledgeable employers develop and ensure training for both human resource personnel and company managers in identifying, addressing, and implementing reasonable accommodations for those unique needs, thereby assuring compliance with both the USERRA and the ADAAA while doing the right thing for individuals who have given their own efforts in military service.
 

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The 4th U.S. Court of Appeals has dismissed an employee’s lawsuit, holding that the individual’s inability to work overtime hours was not a substantial limitation that would entitle him to the protections of the Americans with Disabilities Act (ADA). Boitnott v. Corning Incorporated, 4th Cir., No. 10-1769, February 10, 2012.

Michael Boitnott, an employee of Corning, was diagnosed with a form of leukemia while on a medical leave in 2003. Although no treatment was required for his illness, Boitnott advised Corning in 2004 that he would be unable to return to his regular work schedule as a maintenance engineer. That schedule consisted of 12-hour shifts, alternating two weeks of day shifts with two weeks of night shifts. According to Boitnott’s doctor, Boitnott was capable of working a normal 8-hour day and 40-hour week, but was unable to work overtime.

Because Boitnott could not return to his prior position, he applied for – and initially was granted – long term disability (LTD) benefits in May 2004, and then filed a charge of discrimination against Corning, alleging that the company failed to accommodate his disability. However, the carrier terminated Boitnott’s LTD benefits in October of 2004, based on the fact that Boitnott was capable of working a normal 40-hour workweek, and that certain maintenance positions existed at that point which did not require overtime.

In June 2005, one of Boitnott’s doctor’s indicated that Boitnott could return to work for up to 10 hours a day, four days a week, but did not mention overtime. One other doctor said that Boitnott could work the four 10-hour days with “moderate” overtime. However, at that point, none of the day shift maintenance positions were available. Corning then worked with the union to resolve the issue by creating a new maintenance position consisting of day shift work of 8 hours a day with limited overtime. Boitnott was allowed to apply for that position, in spite of the fact that he was not on active status. He was hired for the position, and has held the job since 2005.

An individual seeking the protections of the ADA must show that his impairment “substantially limits” a major life activity. If an individual cannot demonstrate that his impairment limits what is typically viewed as a major life activity (i.e., seeing, hearing, walking, etc.), courts can then consider whether the impairment limits his ability to work. To do so, the individual must show a significant restriction in his ability to perform either a “class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.”

Federal appellate courts previously have addressed the question of whether the inability to work overtime is a substantial limitation on the major life activity of working. The First, Third, Fifth, Sixth, and Eighth Circuits all have held that an employee is not “substantially limited” if he or she can work a 40-hour workweek, but is unable to work overtime hours. The Fourth Circuit now joins that group. The Court based its holding on the fact that beginning as early as February 2004, Boitnott was cleared to work a full 40-hour workweek, and that his ability to work overtime did not significantly restrict his ability to perform a class of jobs or a broad range of job in various classes in his geographic area.

While this decision is consistent with decisions of its sister circuits, the Fourth Circuit was careful to make an individualized inquiry into the local labor market to assure that other jobs actually were available that were consistent with Boitnott’s restriction of “no overtime.” Employers should be aware of that fact, and should not assume that the inability to work overtime can never support a successful ADA claim.
 

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In a case that adds to a split among federal appellate courts, the 7th U.S. Circuit Court of Appeals has held that a company’s insistence on an employee being “100% healed” after a medical leave does not necessarily support the employee’s legal claim under the Americans with Disabilities Act (ADA). Powers v. USF Holland, Inc., 7th Cir., No. 10-2363, December 15, 2011.

Keith Powers, a truck driver for USF Holland, Inc., injured his back in a work-related incident. After returning from a workers’ compensation leave, Powers returned to his job as a long-haul driver, and worked successfully in that position for two years. Because his wife was expecting a child, Powers asked to be transferred to a city driver route, which would keep him closer to home. However, unlike the long-haul job, the city route included frequent entering and exiting of the truck cab, and loadings and unloadings of the truck with a forklift. After the switch to city driver, Powers again began to have problems with his back and asked to transfer back to long hauls. That request was denied on the basis that the collective bargaining agreement did not allow for more than one job transfer within a one-year period.

Powers took a medical leave, after which he requested to return to work with certain restrictions that would limit him to long-haul driving, including limited dock work and loading and unloading. USF informed him that he could not return to work until he submitted a full medical release containing no work restrictions.

Powers filed a lawsuit claiming that by enforcing its “100% healed” policy, USF had discriminated against him because of his disability. The district court dismissed Powers’ ADA claims, holding that because Powers was capable of long-haul driving, he was not substantially limited in the major life activity of working. Therefore, Powers was not actually disabled within the meaning of the ADA, which requires a “substantial limitation in a major life activity,” and the 100% healed rule was not impermissibly applied to him.

On appeal to the Seventh Circuit, Powers argued that he was disabled because USF regarded him as disabled, which also would bring him under the protections of the ADA. Under the ADA’s “regarded as” prong, an employer must believe (rightly or wrongly) that the employee has a medical impairment that substantially limits him from some major life activity. In addition to agreeing with the lower court’s assessment that Powers’ impairment did not rise to the level of a substantial limitation under the ADA – that is, Powers was not actually disabled - the Seventh Circuit held that because USF did not view Powers as unable to work for other employers, USF did not regard him as substantially limited in the major life activity of working, and that therefore, application of the company’s “100% healed” policy to Powers did not violate the ADA.

The U.S. Supreme Court, in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), held that “an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment – such as one’s height, build, or singing voice – are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” (In Sutton, two visually impaired pilots who were not chosen for positions as “global airline pilots” were not disabled, because they were qualified and able to hold numerous other positions within the aviation industry.) Therefore, a particular impairment could disqualify an individual for a specific job, so long as that impairment did not substantially limit the individual from working for other employers in a class of jobs or from a broad range of jobs.

While this holding seems to support the application of a “100% healed” policy, employers who deal with return-to-work requests may also have to review state workers compensation laws, Family and Medical Leave Act issues, and requests for accommodations, and should not assume that the application of a “100% healed” policy will avoid all problems associated with medical impairments.
 

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Section 503 of the Rehabilitation Act of 1973, as amended ("Section 503"), prohibits employment discrimination by federal government contractor and subcontractor employers against individuals with disabilities. It also includes affirmative action provisions that relate to both hiring and advancement of disabled individuals by those same employers. The provisions of Section 503 apply to government contractors with contracts/subcontracts of over $10,000 for the purchase, sale, or use of personal property or non-personal services, specifically including construction services. Contractors/subcontractors that have a contract/subcontract of at least $50,000 and at least 50 employees are required to prepare and maintain an Affirmative Action Program (AAP) to document efforts to comply with Section 503.

http://www.regulations.gov, or in writing to Debra Carr, Room C-3325, 200 Constitution Avenue NW, Washington, D.C. 20210. The reference number, which should be included with comments, is (RIN) 1250-AA02.

The proposed Section 503 regulations expand both the scope of recruitment and hiring of disabled individuals, and data collection/reporting requirements for contractors. One of the most critical provisions, however, is one requiring contractors to provide training to personnel involved in recruitment, hiring, promotion, and disciplining. That training should include the contractor’s affirmative obligations under the regs and should outline the benefits of employing individuals with disabilities, as well as informing such personnel of the contractor’s legal obligations in this area. Comprehensive, objective training in this area can help to alleviate some of the burden that the new regulations are perceived to impose.

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On December 2, 2011, the EEOC posted an “informal discussion letter” on its website. The letter was in response to an issue involving individuals who are unable to earn a high school diploma because of certain learning disabilities and who therefore are ineligible for jobs that require a high school education. According to the EEOC, a qualification standard - including a high school diploma requirement - that screens out individuals on the basis of a disability must be job related and consistent with business necessity, or such standard may violate the Americans with Disabilities Act.

A qualification standard is “job related and consistent with business necessity” if it accurately measures an applicant’s ability to perform the fundamental responsibilities of the job in question. However, that measurement is simply the first of two steps. Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with an accommodation.

That means that, for instance, if an employer requires a high school diploma as a baseline for hiring, and that baseline screens out an individual with a learning disability, the employer must fulfill both steps of the process in order to comply with the ADA. Specifically, it first must demonstrate that a high school education is a job related requirement for the particular job, and that the essential functions of the job cannot be effectively performed by someone without a high school diploma. It must then go one step further, and determine whether the individual applicant whose learning disability kept him or her from obtaining a diploma can perform the essential functions of the job, with or without a reasonable accommodation. If that particular applicant is able to perform the essential functions of the job, despite the inability to meet the qualification (high school diploma), the employer cannot use the lack of diploma to screen out the disabled applicant from the applicant pool.

While this rationale was set forth in an “informal” letter from the EEOC to an employer and does not have the force of law or regulation, it is worthy of notice. While an employer is not required to “prefer” a learning disabled applicant over other applicants with more extensive qualifications, it is clear that the EEOC is informing employers that disabled individuals cannot be excluded from consideration for employment based upon artificial barriers in the form of inflexible qualification standards.
 

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The Americans with Disabilities Act prohibits employers from discriminating against individuals because of disability or perceived disability. However, in order to sufficiently support an ADA claim, an individual employee must be able to prove that he was qualified to perform his job in a satisfactory manner, with or without accommodation. Recently, the 7th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer, based upon the fact tat the plaintiff/employee, although disabled, was unable to show that he was meeting the legitimate job expectations of his employer and therefore was not a “qualified individual with a disability” under the ADA. Dickerson v. Bd. Of Trustees of Comm. College District 522, 7th Cir., No. 10-3381, September 16, 2011.

Robert Dickerson is employed as a part-time custodian for a community college in Illinois (“District 522”). Dickerson is mentally impaired, with a Full Scale IQ of 67 which, according to the court, falls into the range of “mild mental retardation.” In August 2007, Dickerson applied for a full-time position, but was not the successful candidate. In December of that year, Dickerson’s overall job performance was rated as “Unsatisfactory,” based on a number of issues, including the fact that he needed constant supervision or would wander off jobs. He often left his work area, putting additional burden on his co-workers. In January 2008, Dickerson filed a grievance with his union, and in February, he filed an EEOC charge alleging discrimination based upon his mental disability.

In the Spring of 2008, subsequent to the EEOC charge, Dickerson asked Larry Friederich, the District’s Vice President of Human Resources, what he should be doing in order to be promoted to a full-time position. Friederich responded along the lines of “you should not be suing your employer.”

Although Dickerson’s performance improved somewhat in 2008, the District found that he had made “insufficient progress” in correcting the issues raised in his 2007 evaluation, and terminated his employment. Dickerson grieved the termination, and an arbitrator reinstated him to his part-time position on the basis that the District had failed to follow the bargained-for progressive discipline policy. Dickerson then filed a lawsuit against District 522, claiming that District 522 discriminated against him by failing to promote him, evaluating him negatively, and firing him. The lower court granted summary judgment in favor of District 522. That decision was upheld by the Seventh Circuit on appeal.

An employee can support claims of discrimination and retaliation with direct evidence or indirect evidence. Direct evidence typically requires an admission by a decision-maker. In this case, Dickerson pointed to Friederich’s statement regarding the EEOC charge to allege that District 522 acted against him because of that charge. Indirect evidence requires the now-familiar “burden-shifting” analysis under McDonnell-Douglas, and requires an employer to set forth a legitimate business reason for its actions in order to rebut an employee’s prima facie case of discrimination.

In either event, the ADA protects only a “qualified individual” - someone with a disability who can perform the essential functions of the job with or without reasonable accommodation. In this case, the Seventh Circuit determined that Dickerson was unable to fulfill his job duties, based upon his history of discipline and performance criticism. It pointed out that Dickerson had received performance warnings as far back as 2005 for failing to complete work assignments and for leaving the job site without permission, that his 2007 performance evaluation was “Unsatisfactory,” and that his supervisor had frequently reprimanded him for work-related issues. While Dickerson disagreed with the negative evaluations, the court did not interpret that to mean that the evaluations were the result of unlawful discrimination.

While the rationale in this case is somewhat murky and seems to conflate the analysis of direct and indirect evidence, the holding rests squarely on the fact that District 522 was able to provide evidence and documentation of Dickerson’s history of performance problems, warnings, and counselings. The message for employers is obvious: regular, objective, and fully documented performance reviews are critical evidence in the defense of discrimination cases. Written job descriptions that spell out the duties and responsibilities of an employee also can assist in providing evidence of an employer’s legitimate expectations of an employee, and should be reviewed and updated regularly to accurately reflect that information.
 

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In an issue of first impression for the court, the 6th U.S. Circuit Court of Appeals has upheld the dismissal of an individual’s claim under the “associational discrimination” provision of the Americans with Disabilities Act. Stansberry v. Air Wisconsin Airlines Corp., 6th Cir., No. 09-2499, July 6, 2011. In that case, an employee claimed that he was fired from his position shortly after his wife’s medical condition - of which the company had been aware for years - worsened, leading him to believe that her condition was the basis of his termination.

Eugene Stansberry managed operations for Air Wisconsin at the Kalamazoo Airport from 1999 until his discharge in 2007. While Stansberry was not a disabled individual, his wife was diagnosed with a rare and disabling auto-immune disorder in the mid-1990s. This medical condition caused severe complications, including a stroke, tumors, lesions, and vision problems. The company was aware of that medical condition, and continually provided medical benefits under the company’s group health care plan.

In 2007, Air Wisconsin dramatically increased the number of employees at the Kalamazoo facility from eleven employees to twenty-five. As the highest ranking manager at the location, Stansberry was responsible for assuring that employees properly carried out their job responsibilities. During the first four months of 2007, six of the location’s employees received a total of nine security violation letters from the airport’s director. However, Stansberry failed to notify Air Wisconsin’s corporate headquarters about the security violations, as required by company policy. Stansberry’s supervisor (Mulder) was particularly troubled that Stansberry had failed to inform him of the violation letters, or the underlying employee problems. Mulder and the company’s vice president of customer relations subsequently informed the Transportation Security Administration that they would take “severe disciplinary action” against Stansberry for that failure. On July 26, Mulder had a meeting with Stansberry during which Stansberry was fired.

In August, Stansberry filed a charge of discrimination and eventually was issued a right to sue. In his lawsuit, Stansberry alleged an “associational disability” claim, stating that the company violated the ADA’s 2006 provision that forbids discrimination against "a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4). Stansberry argued that the company fired him because of his wife’s deteriorating condition. The district court granted summary judgment in favor of the company, finding that Stansberry did not set forth a prima facie case of associational discrimination, and that Stansberry’s poor performance was a legitimate reason for his termination.

In order to support an associational discrimination claim, an employee must first set forth a prima facie case, which includes a showing that (1) he was qualified for the position; (2) he was subject to an adverse employment action; (3) he was known to have a relative with a disability; and (4) the adverse action occurred under circumstances that raise an inference that the disability of the relative was a determining factor in the decision.

Associational discrimination claims, which are relatively infrequently litigated, fall generally into three categories: "expense," "disability by association," and "distraction" cases. The “expense” cases typically involve a situation in which an employee suffers some adverse personnel action because his spouse (or other associated family member) has a disability that is costly to the employer because of health plan coverage; "disability by association" claims typically involve a close personal relationship (for instance when the employee's homosexual companion is infected with HIV and the employer fears that the employee may also have become infected; or an employer is concerned about the risk that an employee will develop a hereditary ailment currently suffered by an employee’s blood relative; "distraction" claims are based upon an employer’s concern that an employee is inattentive at work because his ailing family member has a disability that requires his attention.

Stansberry’s case falls most logically into the “distraction” category, and his argument seems to be that the company should have accommodated his lack of attention to his job, rather than fire him for it. However, under the federal regulations related to the ADA, the right to an accommodation is limited to disabled employees only, and does not extend to a nondisabled associate of a disabled person. Therefore, while Stansberry’s poor performance may have been caused by his concern for his wife’s illness, that fact (as sad as it may be) is non-compensable under the ADA. Further, according to the Sixth Circuit, Stansberry could not support a prima facie case of associational discrimination - which would have required him to show that he was qualified for his position - because he could not dispute the fact that he had failed to report the violation letters as required by company policy.

The critical issue for employers in this case is while that employee performance issues should be clearly, objectively, and fully documented in all cases, it is especially important in situations like this one, where the employee may have the ability to bring an associational disability claim under the ADA. Such documentation may be the key to show that performance issues, and not a relative’s disability, formed the basis of an adverse employment action.
 

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The Americans with Disabilities Act specifically includes a “safe harbor” provision for individuals no longer abusing drugs and alcohol, specifically including individuals who have successfully completed a supervised rehabilitation program and are “no longer engaged in the illegal use of drugs.” While the Courts have declined to adopt a bright-line rule as to the number of days of sobriety required to remove an individual from being viewed as currently engaged in the use of drugs or alcohol, the 10th U.S. Circuit Court of Appeals has ruled that an individual who had completed a 28-day rehabilitation program would not necessarily be viewed as drug-free for purposes of the ADA. Mauerhan v. Wagner Corp., 10th Cir., Nos 09-4179 and 4185, April 19, 2011.

Peter Karl Mauerhan began his employment with Wagner Corporation from 1994. On June 20, 2005, Mauerhan tested positive for drugs at work, and was fired for violating the company’s drug policy. He was told that if could return to the company if he “got clean.” Between July 6 and August 4, 2005, Mauerhan was in an inpatient drug rehabilitation program. Upon his completion of the program, a counselor described Mauerhan’s recovery prognosis as “guarded.”

The day after completing the program, Mauerhan attempted to return to work. He was told that Wagner would re-employ him, but that he would not receive the same level of compensation as he had earned previously, and would not be servicing the same client accounts as before. Mauerhan refused to accept these terms and subsequently filed a lawsuit against Wagner, claiming a violation of the ADA based upon his status as a recovering addict. Wagner responded to the lawsuit by arguing that Mauerhan was a “current user” within the meaning of the ADA when he asked to be rehired and, therefore, was not a qualified individual with a disability for purposes of the Act. The district court agreed, and granted summary judgment in favor of the company. That decision was upheld by the Tenth Circuit on appeal.

The ADA prevents employers from discriminating against a “qualified individual” on the basis of a disability. For purposes of the ADA, an employee is not a qualified individual if he or she is engaging in the illegal use of drugs. However, the ADA specifically exempts from this group individuals who are participating in or who have successfully completed a supervised rehab program and are no longer currently engaging in such use (“the safe harbor provision”). While the courts have not fully defined the scope of the “currently engaging” exception, in this case, the Tenth Circuit specifically held that one drug-free month was insufficient to trigger the safe harbor provision for Mauerhan. It based that holding on its view that Mauerhan’s most recent active drug use (30 days prior to his application for reemployment) was sufficiently recent to justify Wagner’s concern that the drug use may remain an ongoing problem.

The Court further held that mere participation in a rehabilitation program is not enough to trigger the protections of the ADA. While such participation can bring an individual closer to qualification for the ADA’s safe harbor provision, that individual’s period of non-use of drugs must be sufficient to indicate that the drug use is no longer an ongoing problem.

In this case, Wagner presented evidence that Mauerhan’s prognosis for recovery from his addiction was “guarded” at the time that he requested to be re-hired, and they provided testimony from an addiction specialist that approximately three months of treatment would have been necessary for an addict like Mauerhan to reach a “threshold of significant improvement” in his addiction. Maurenhan failed to rebut this information, relying solely upon his participation and successful completion of the 28-day program. The Court found that because Mauerhan failed to rebut Wagner’s factual assertions, the Company was entitled to summary judgment

This case – like similar cases decided by other appellate courts – fails to provide a bright line test for when an individual falls within the safe harbor provision. However, the Tenth Circuit has indicated that an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, and should take into account the circumstances of the individual’s drug use and recovery, and whether those circumstances justify a reasonable belief by the company that the person’s drug use is no longer a problem.

The Court provided some factors to be reviewed in such a determination, including the severity of the addiction, the relapse rates for the drug(s) being used, the level of responsibility entrusted to the employee, the employer’s performance requirements, and the employee’s past performance record. Before making any decision related to an individual in rehab, an employer should review these factors, in order to assure compliance with the ADA.
 

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The ADA Amendments Act (ADAAA) was signed into law by President George W. Bush on September 25, 2008. On March 25, 2011, and after review of over 600 public comments, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the enforcement of that Act. Check the EEOC’s website at www.eeoc.gov for a summary of the provisions of those regs (Fact Sheet on the EEOC’s Final Regulations).

The Final Regulations are consistent with Congress’ purpose of the ADAAA: to "make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA." The Final Regulations and the revised Interpretive Guidance are intended to refocus courts on the issues of prohibited conduct and reasonable accommodation; the question of whether an individual meets the definition of disability is going to be a lower hurdle when determined in accordance with the new regulations.

The primary emphasis of the Final Regulations is on the "regarded as" prong of the definition of the term “disability.” Most claims of discrimination now will likely be evaluated under the "regarded as" prong with the first two prongs (“actual disability” and “record of a disability”) applying primarily in cases where the individual is seeking a reasonable accommodation. As noted by the EEOC in the revised Interpretive Guidance, Congress expected the first and second prongs of the definition of disability to be used "only by people who are affirmatively seeking reasonable accommodations" and that "[a]ny individual who has been discriminated against because of an impairment – short of being granted a reasonable accommodation or modification – should be bringing a claim under the third prong of the definition."

According to Thomas Bright, a shareholder in Ogletree Deakins' Greenville, South Carolina office: "The EEOC, in revising the Final Regulations, was attempting to take into consideration the often competing interests of various stakeholders. Many employers and business organizations that submitted comments to the EEOC opposed the inclusion of a per se list of conditions that would always be considered disabilities. Employees and various advocacy groups wanted to see an expansion in the list of per se disabilities. The EEOC steered a middle ground by including a nonexhaustive list of examples of conditions that would likely be considered disabilities, but retained the concept of individualized assessment."

The Final Regulations set forth specific “rules of construction” derived from the ADAAA and its legislative history, and which will be used by courts as guidelines when making determinations regarding disability discrimination cases. Those rules include: a broader construction for the term “substantially limits”; requirement of an “individualized assessment” when determining whether an impairment limits a major life activity; and a statement that an episodic/in remission impairment is a disability if it would substantially limit a major life activity when active. The Final Regulations and the revised Interpretive Guidance make it clear that courts will now spend less time determining coverage under the Act (that is, whether an impairment is actually a disability), and more time determining whether a discriminatory act occurred. The anticipated end result of this refined focus is that more disability discrimination cases will go to trial and fewer will be dismissed on summary judgment.
 

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A medical resident with Asperger’s Disorder was unable to meet his burden, in his ADA lawsuit against his hospital employer, that he was “otherwise qualified” for his position. The 6th U.S. Circuit Court of Appeals upheld summary judgment in favor of the hospital, because the resident’s requested accommodation - that the hospital physician and staff be educated on the symptoms and triggers of Asperger’s - did not address the key obstacle preventing him from performing a necessary function of his job, or resolve his inability to fulfill his responsibilities as a hospital resident.  Jakubowski v. Christ Hosp. Inc., 6th Cir., No. 09-4097, December 8, 2010.

Martin Jakubowksi graduated from the University of Medical Sciences in Poznan, Poland in 2003. In July 2005, he began a medical residency at St. Elizabeth Hospital in Youngstown, Ohio. In October, he was placed in a remediation program to improve performance weaknesses, but his contract at that hospital ultimately was not renewed. He then enrolled at the New York Medical College for a year-long supervised clinical training. He received mixed reviews there, with the negative comments focused largely on his lack of communication skills.

In July 2007, Jakubowski found a second residency, this time at Christ Hospital in Cincinnati. During the first month of that residency, he received mixed reviews. While his “medical knowledge” scores were high, he scored poorly on an emotional intelligence exam, and was evaluated as deficient in self-awareness, social competence, and relationship management. One attending physician observed that Jakubowski had poor organizational skills, skipped standard procedures in his examinations, and performed procedures incorrectly. While Jakubowski never caused actual harm to any patient during his residency, his supervising physicians noted his inability to communicate effectively with nurses, and certain unclear orders made by Jakubowski for medication and treatment of patients.

On August 25, 2007, Jakubowski was formally diagnosed with Asperger’s. On that same day, but before formal notification to the hospital of that diagnosis, the director of the residency program (Dr. Diller) informed Jakubowski that he would be terminated from his residency on September 30, 2007. On September 11, Jakubowski’s attorney sent a letter to the hospital proposing that the hospital accommodate the diagnosed Asperger’s by increasing the “knowledge and understanding” of the physicians and nurses working with Jakubowski. The hospital responded that it did not have sufficient resources to comply with the proposal by Jakubowski, but offered to help him in finding a residency in pathology, a field that required little or no patient interaction.

Jakubowski sued the hospital, alleging that he had been let go because of his Asperger’s Disorder, and claiming that the hospital failed to accommodate that disability. The lower court granted summary judgment in favor of the hospital, and that decision was upheld by the Sixth Circuit on appeal. In its analysis, the Sixth Circuit pointed out that effective communication with colleagues and patients was an essential function of a resident’s job. Whether or not Jakubowski was a “qualified” resident in spite of his Asperger’s depended on whether his proposed accommodation would improve his communication and interactions with others. Because the proposal to increase the “knowledge and understanding” of his co-workers about Asperger’s did not directly improve Jakubowski’s ability to communicate effectively, because the proposed accommodation was involved an indefinitely period of time and indefinite frequency, and because Jakubowski’s inability to communicate could have an adverse effect on patient safety, the Sixth Circuit upheld the lower court’s dismissal of the case.

While the ADA prevents an employer from discriminatorily terminating an otherwise qualified individual on the basis of a disability, Jakubowski was unable to prove that he was “otherwise qualified” to successfully complete his residency, because his proposed accommodation did not directly improve his ability to communicate with co-workers and patients. According to the Sixth Circuit, a plaintiff has the burden of proving that he will be “capable of performing the essential functions of the job with the proposed accommodation,” and Jakubowski was unable to do that. Therefore, he could not proceed with his ADA claims.

This holding does not excuse employers from participating in the interactive process by engaging in a reasonable discussion of accommodations proposed by a disabled employee. It does, however, indicate that unless an impaired individual can describe and request an accommodation that allows him or her to undertake the essential functions of the job, that individual cannot support a lawsuit under the ADA.

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The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities, or being “regarded” as having such impairment. In order to support a “regarded as” claim under the ADA, an individual has to show that the perceived impairment limited a major life activity and that the limitation was “substantial.” The 5th U.S. Circuit Court of Appeals recently held that a nurse’s claim that her employer viewed her as unable to perform job duties as a treatment nurse was insufficient to show that the employer viewed her as generally unable to perform as a nurse. Winborne v. Sunshine Health Care, Inc., 5th Cir., No. 09-60755, November 17, 2010.

In 1992, Barbara Winborne began working as a licensed practical nurse (LPN) at Sunshine Rest Home. A year later, Winborne was diagnosed as suffering from transient ischemic attacks (TIAs). When she experienced a TIA, Winborne had difficulty concentrating, often experiencing dizziness, temporary loss of awareness, and severe headaches. In order to control the attacks, Winborne took mediation, and had no problems performing her job duties. In 2005, she informed the Director of Nursing for Sunshine Health Care(SHC) that she suffered from the TIAs.

On July 8, 2005, during her rounds through the facility, Winborne checked on an elderly dementia patient, who required restraints because she was prone to agitation. Thirty minutes later, when Winborne returned to the room, she found the patient hanging out of the bed with the bed rails lowered, and held only by her pelvic restraints. The patient was rushed to the hospital and later was returned to the facility.

The incident was reported to the Mississippi Department of Health (MDOH), as required by law, and an investigation was done, during which Winborne was suspended from her employment. Based upon its investigation, the MDOH found “abuse and neglect” of the patient. SHC discharged Winborne, based on its policy that requires termination of an employee found guilty of patient neglect. Winborne sued SHC, alleging that she was fired in violation of the ADA, and because SHC regarded her as disabled. A jury awarded her $10,000 and over $25,000 in attorney fees and costs. On appeal, the Fifth Circuit reversed and entered judgment in favor of SHC.

In order to show that SHC regarded her as substantially limited in the major life activity of working, Winborne had to prove that SHC believed her to be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Importantly, the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Winborne therefore had the burden to show that her perceived impairment extended beyond her one particular job to a class of jobs or to a broad range of jobs in various classes.

The factors that a court may consider in determining whether a person is substantially limited in the major life activity of working include the job from which the individuals has been disqualified because of an impairment (or perceived impairment), and the number and types of other jobs utilizing similar training, knowledge, skills or abilities within the geographic area to which the individual has reasonable access. In this case, Winborne offered no evidence to show that her condition disqualified her from other nursing positions or from a broad range of healthcare-related positions that did not involve patient care. She also failed to present any evidence about the numbers and types of available (or unavailable) jobs utilizing similar training within the relevant geographic area, and did not ask a single question at trial about whether SHC would have hired her in an administrative role.

Because Winborne failed to present any evidence to prove that SHC regarded her as unable to perform a class of job, or a broad range of jobs in various classes, the Fifth Circuit concluded that the trial evidence was insufficient as a matter of law to support the jury’s verdict, and revered the verdict. This holding is important to employers, who should recognize that in order to successfully defend against ADA claims, it is helpful for the employer to be able to show the availability of jobs (within a relevant geographic area) which are consistent with the plaintiff’s skills, qualifications, and abilities. While the burden of proof is on the plaintiff in a discrimination case, information of that type can help to explain to a jury that there is no perception of “disability,” because there is no perception that the plaintiff was substantially limited in the ability to work.
 

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The ADA Amendments Act of 2008 (ADAAA) clarified the ADA in a number of ways. In one significant clarification, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Based upon that wording, a federal district court in the Northern District of Indiana has held that an employee with cancer is considered to be disabled under the Act, even if his condition is in remission at the time of he alleged adverse action taken against help by his employer. Hoffman v. Carefirst of Fort Wayne Inc., N.D.Ind., No. 1:09-cv-00251, 8/31/10.

Stephen Hoffman worked as a service technician in 2007 when he was diagnosed with Stage III Renal Carcinoma, and underwent surgery to remove his left kidney. Hoffman took time off work for surgery and recovery, and returned to his job on January 2, 2008, without restrictions or limitations. As a service technician, Hoffman delivered home medical devices, such as wheelchairs and oxygen tanks to patients. Although his job description with Carefirst required him to be “available after hours and on call,” his typical schedule was 9 a.m. to 5 p.m. on weekdays. Hoffman worked his regular schedule from January 2008 through January 2009, and did not miss significant time from work, other than for regular doctor visits.

On January 26, 2009, Hoffman met with his supervisor, David Long, who told Hoffman that the company had acquired a contract with a hospital system that would require service technicians, including Hoffman, to work substantial amounts of overtime each week, to do a night shift once and week, and to be on call on weekends. Hoffman expressed concern that the required schedule would “put me in the grave.” Hoffman then obtained a note from his doctor that limited him to “8 hours/day, 5 days/week.”

Although Long initially told Hoffman that Hoffman would be fired, he then retracted that statement and said that he company would allow Hoffman to work a 40 hour a week schedule out of its Fort Wayne office. Hoffman objected to that, based on the two hours of additional commuting time that the new location would add to his workday. He told Long that “you have already fired me,” and asked Long to communicate directly with his (Hoffman’s) attorney.

Hoffman then sued Carefirst under the ADAAA, alleging that his renal cancer – which admittedly was in remission at the time of his firing – was a disability. Not surprisingly, Carefirst argues that Hoffman was not disabled, based on the facts that Hoffman had returned to work without restrictions, had worked a full schedule for a year, and did not miss significant time from work during that period. Because the ADAAA went into effect on January 1, 2009, there is little case law under those amendments. However, based upon the clear wording of the Act (that disability includes impairments “in remission” if the impairment would be a substantial limitation when active), the court held that Hoffman did not need to show that he was substantially limited in a major life activity at the actual time of his termination, because his cancer would have substantially limited him, had it been active. It therefore found him to be “disabled” for purposes of the ADAAA, and denied Carefirst’s motion for summary judgment.

One other aspect of this case should be noted by employers: there was no evidence that Carefirst carefully reviewed and discussed possible accommodations with Hoffman before telling him that his only option was working out of another office. Had Carefirst provided evidence that any other accommodation would have created an “undue hardship” for the company, the lower court may have decided that although Hoffman was disabled, Carefirst had offered an appropriate accommodation that was refused by Hoffman.

While it remains to be seen whether this decision is upheld on appeal, the case provides to employers an insight that courts are likely to interpret this particular provision of the new amendments very literally. An impairment from which an individual has recovered, but which may reoccur is likely to be viewed as a disability under the ADAAA.
 

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The 6th U.S. Circuit Court of Appeals has held that a company that transferred a pregnant employee out of a welding job and into a light duty tool room job without first undertaking an objective evaluation of the employee’s ability to do the welding job may be liable for violation of the Pregnancy Discrimination Act (PDA) or the Americans with Disabilities Act. Spees v. JamesBuilt, LLC, 6th Circ., No. 09-5839, August 10, 2010.

Heather Spees filed claims against her employer, James Marine, Inc. (JMI) alleging that the company violated Title VII’s Pregnancy Discrimination Act and the Americans with Disabilities Act when it moved her from a welding job into a light duty tool room job, and when it ultimately terminated her employment.

Spees became pregnant shortly after being her job as a welder with JMI in 2007. This was her third pregnancy; her daughter was born in 1999, but Spees suffered a miscarriage in 2005. Spees informed her brother (Gunder), who also worked at JMI as a foreman, and her direct supervisor (Milam), of her pregnancy. Gunder believed that the welder duties – especially the lifting and pulling - should not be performed by Spees while she was pregnant. Milam was concerned that, because of Spees’ “complications with other pregnancies,” Spees should not be around “the chemicals, the welding smoke, [and] climbing around on some of the jobs.” Although Spees’ doctor opined that the welding job would be “no problem” and released her to work without restrictions, Milam asked Spees to obtain a second note from the doctor limiting her to “light duty,” which Spees did. Milam then transferred Spees to the company’s tool room, at the same pay and benefits.

Spees worked the daytime shift in the tool room for a week, but then was transferred to the night shift, which conflicted with Spees child-care schedule. A month later, Spees transferred her medical care to another obstetrician, who discovered that Spees had a pregnancy-related medical condition that required total bed-rest. When Spees provided documentation to the company of that fact, Gunder told her that she “was being fired for being pregnant,” and because she had not worked at JMI long enough to have earned FMLA or other additional medical leave.

The district court granted summary judgment for JMI on all of Spees’ claims, holding that the transfer did not constitute the required “adverse employment action” under the PDA, and that JMI’s reason for firing Spees – the fact that her doctor placed her on full bed-rest, and she had no additional available medical leave – was not a pretext for discrimination. The Sixth Circuit reversed the decision regarding the transfer, but upheld the dismissal of the termination claims.

According to the Sixth Circuit, the record in this case included evidence to suggest that Spees’ transfer was a materially adverse change in her employment status, in spite of the fact that her salary and benefits remained the same. The work required fewer qualifications (and therefore, may be viewed as lower status), was “more boring” for Spees than welding had been, and was night-shift work that interfered with her ability to raise her child. Further, Spees was able to present sufficient evidence to allow a jury to find that her pregnancy was a “motivating factor” in her transfer to the tool room job: Milam expressed concerns (which he believed were based on “common sense”) that the fumes would create an unsafe condition for her; and Gunder stated that he did not want to her weld because “she was carrying my niece.” Neither of these managers requested an analysis of the welder position for review by Spees’ doctor, nor did Spees seek the transfer before it was made. In sum, a reasonable jury could find that JMI’s decision that Spees was unable to weld was due to her pregnancy, thereby supporting her PDA claim.

The Sixth Circuit agreed, however, that Spees’ inability to work at all during her period of bed-rest was a legitimate business reason for her termination. That restriction came through no action on the part of JMI and was a decision made solely by Spees’ doctor. That order for bed-rest, coupled with the fact that Spees had no available leave time, was a legitimate basis for the termination.

The Court’s opinion emphasizes the point that an employer cannot make a decision based on suspicion, assumption, or subjective information – even if that decision seems to be in the employee’s best interest. Here, the managers’ view that Spees would be unable to perform her job as a welder because of her prior miscarriage led to the Court’s holding that Spees’ transfer may have been motivated by her pregnancy. That holding in turn resulted in a decision to allow a jury to determine the company’s level of liability for that act.
 

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The Americans with Disabilities Act allows an employer to require an employee to undergo a Fitness For Duty Examination (FFDE) when health problems have had a substantial or injurious impact on an employee’s job performance. Such examination must be job-related and consistent with business necessity. The 9th U.S. Circuit Court of Appeals has held – as an issue of first impression for that Court - that an employer also can require an employee to undergo such exam as a “preemptive” measure against potential dangerous or harmful conduct, especially when the employee is engaged in dangerous work. Brownfield v. City of Yakima, 9th Circ., No. 09-35628, July 27, 2010.

Oscar Brownfield began working as a police officer for the Yakima Police Department (YPD) in Yakima, Washington, in 1999. In 2000, he suffered a closed head injury in an off-duty car accident, which caused symptoms that included reduced self-awareness. He returned to work and, over the following three years, received positive performance reviews and several commendations.

In 2004, Brownfield began to complain to his supervisor about another officer, Officer Dejournette, alleging various “shortcomings” on Dejournette’s part, and began to document those perceived failings. In May 2005, after he was reprimanded for a performance issue, Brownfield forwarded his notes to the Chief, Sam Granato. During a subsequent meeting among Brownfield and two of his supervisors, Brownfield used profane language, and left the meeting after being asked to stay. Brownfield was temporarily suspended for insubordination after that incident.

In September 2005, four additional incidents occurred involving Brownfield. First, he engaged in a “disruptive argument” with another officer; second, Brownfield himself reported that he felt himself “losing control” during a traffic stop when a young child was “taunting him” during the stop; third, YPD received a domestic violence call from Brownfield’s estranged wife after Brownfield allegedly stuck her by closing a door on her; and fourth, a YPD officer reported several statements made by Brownfield including a statement that “It doesn’t matter how this all ends.” Those incidents, taken together with the May incident, led the YPD to send Brownfield for an FFDE.

The diagnosis offered by Dr. Decker, who conducted the FFDE in October 2005, was Mood Disorder which manifested itself in “poor judgment, emotional volatility, and irritability,” and was related to Brownfield’s 2000 head injury. Dr. Decker determined that Brownfield was unfit for police duty and was permanently disabled by the condition.

Brownfield subsequently got a second opinion from Dr. Mar, who agreed with Decker that Brownfield was unfit for duty, but believed that Brownfield’s condition might improve with treatment. In December 2006, Mar reported that Brownfield was improving and could return to duty, but at an unspecified date. YPD scheduled another FFDE, this time with Dr. Ekemo (Brownfield refused to return to Decker). Although Brownfield attended an initial session with Ekemo, he refused to return to complete the evaluation, and his employment ultimately was terminated.

Brownfield sued in federal court alleging, among other claims, that the YPD had violated the ADA by requiring him to submit to the FFDE. The district court granted summary judgment in favor of the City, and Brownfield appealed. The lower court’s dismissal was upheld by the Ninth Circuit.

The Ninth Circuit found that the ADA”s directive that a medical exam be “job-related and consistent with business necessity” was quite high, but that the ADA does not require an employer to wait until a perceived threat becomes real or to allow questionable behavior to result in injuries before sending an employee for an FFDE, particularly when the employee is engaged in dangerous work. In interpreting “business necessity,” the Court cautioned that it should not be confused with mere expediency, and that using medical exams to harass employees or to “fish” for non-work-related medical issues could, in fact, violate the ADA. The behavior that triggers such FFDEs cannot be merely annoying; rather, there must be some objective reason to doubt whether the employee can perform his or her job-related functions.

Because the employer bears the burden of demonstrating a job-related reason for an FFDE, employers should understand the relevance and the parameters of the concept of “business necessity,” especially when used as a basis for a preemptory FFDE. Clear, concise, and objective documentation of the incidents that form the basis of the reason for that exam can help to avoid, or to effectively defend against, an employee’s claims under the ADA.
 

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Earlier this year, and in a case of first impression, the 3d U.S. Circuit Court of Appeals upheld an employee’s claim that her employer violated the ADA by refusing to change her work shift after she reported commuting difficulties based upon a visual impairment that made it difficult for her to drive at night. Now, in an unpublished opinion, the 9th U.S. Circuit Court of Appeals has issued a similar decision. In that case, the Court reversed a decision in favor of an employer, allowing an individual’s claim to go to trial on the issue of whether the company failed to accommodate the employee’s visual impairment when it refused to modify her work schedule to daylight only hours. Livingston v. Fred Meyer Stores, Inc., 9th Circ., 08-35597, July 21, 2010.

Michelle Livingston began working for Fred Meyer Stores (Meyer) as a wine steward in April 2005. Livingston has been diagnosed with “depth perception difficulties under low light conditions,” which makes it difficult for her to safely drive or walk outside after dark. In the Fall of 2005, Livingston asked for, and was granted, a modified schedule to allow her to leave work during daylight hours. During that time, Livingston helped increase the store’s wine sales and improve its sales ranking. However, when she again asked for the modified schedule in the Fall of 2006, Meyer refused the request, and ultimately fired Livingston when she refused to work her scheduled shift.

Livingston sued the company, alleging that it failed to accommodate her and then retaliated against her, both in violation of the Americans with Disabilities Act. The district court granted summary judgment in favor of the employer, holding that Livingston did not have a disability because her vision impairment did not substantially limit a major life activity, and that even if Livingston was disabled, a company’s duty to accommodate did not extend to “commute-related limitations.” The Ninth Circuit disagreed, reversing and remanding the case for trial.

A person is substantially limited in a major life activity if she is “significantly restricted” as to the condition, manner or duration under which she can perform that activity, when compared to the average person. Livingston’s impairment prevents her from safely driving or walking at night, when the average person is able to see well enough to do both. The Court held that on that basis, Livingston raised a triable issue of fact regarding whether she is disabled under the ADA in the major life activity of “seeing.”

The Court then specifically addressed the lower court’s finding that the duty to accommodate does not extend to commute-related limitations. It pointed out that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate an employee’s disability-related difficulties in commuting to work and that, therefore, Meyer had a duty to accommodate Livingston’s inability to finish her scheduled shift, so long as such accommodation did not create an undue hardship for the company. Because Meyer had not suffered a hardship when it modified Livingston’s schedule in 2005 – indeed, wine sales increased with Livingston’s help during that period – Livingston is entitled to allow a jury to decide whether Meyer’s failure to accommodate her request in 2006 was a violation of the ADA.

The Court further determined that Livingston’s failure to work her scheduled shift stemmed from her disability, and that conduct “resulting from a disability” is considered to be part of the disability, rather than a separate basis for termination. Therefore, the Court held, Livingston’s claim that she was terminated “because of her disability” should be decided by a jury.

In this case, there was no evidence that Meyer asked for any additional information or engaged in any dialogue with Livingston before refusing her request in 2006, and then terminating her employment. The absence of such evidence created the basis for the Ninth Circuit’s reversal of the district court’s decision in Meyer’s favor. Employers are required to engage in an interactive process in good faith when an employee asks for an accommodation of a disability. That failure can result in liability under the ADA if such reasonable accommodation is possible and appropriate.
 

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The Americans with Disabilities Act defines a disabled individual as a person who suffers from a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment, or is being regarded as having such impairment. The “regarded as” provision was established to combat erroneous perceptions that might work to the disadvantage of individuals with impairments that might not rise to the level of an actual disability. The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an individual after that person’s physician found that she was not “fit for duty” as an emergency dispatcher. Wisbey v. City of Lincoln, Nebraska, 8th Circ., No. 09-2100, July 6, 2010. There, the court held that if an action taken by an employer is based upon the recommendation of physicians, then it is not based on myths or stereotypes about impaired individuals, and cannot then establish a violation of the “regarded as” provision of the ADA.

Charlene Wisbey began working as an emergency dispatcher for the City of Lincoln, Nebraska in 1979, and successfully held that position until early in 2007. The position requires dispatchers to “think and act quickly and calmly in emergency situations,” and to “function accurately while working under considerable pressure.

On February 27, 2007, Wisbey applied for intermittent FMLA leave on the basis of depression and anxiety. Her FMLA application stated that she had a serious health condition that rendered her unable to perform the essential functions of her job, and was supported by a medical certification from her physician saying that Wisbey suffered from recurring cycle depression and anxiety that interfered with her sleep, energy, motivation, and concentration. The certification included the fact that Wisbey would need to take time off work on an intermittent basis for “6 months or longer.”

In response to the doctor’s evaluation of Wisbey, the City asked Wisbey to undergo a fitness-for-duty examination with a psychiatrist. During her examination, Wisbey described her battle with depression and stated that the emergency nature of her job worsened her condition. After the exam, the psychiatrist submitted a report that stated that Wisbey was not able to fulfill the duties set forth in her job description. The City ultimately terminated Wisbey’s employment, based upon the findings during the fitness-for-duty examination. Wisbey filed suit that included an allegation that her termination was a violation of the ADA. The lower court granted the City’s motion for summary judgment and dismissed the case. That decision was upheld on appeal by the Eighth Circuit.

Because Wisbey conceded that she was not have a disability or a substantially limiting impairment, she brought her claim under the “regarded as” provision of the ADA, arguing that the City perceived her as disabled and fired her because of that. However, in order for an employee to be regarded as disabled, an employer must mistakenly believe that an actual impairment substantially limits that person’s ability to work. Wisbey’s employment was terminated when she was found by a medical provider not to have been fit for duty as an emergency dispatcher. Therefore, the City did not “mistakenly” belive that Wisbey had an impairment that substantially limited her ability to work – she really was unable to do her job due to her condition. Further, while Wisbey argued that the fitness-for-duty exam itself was a violation of the ADA, that law allows employers to require a medical exam if such exam is “shown to be job-related and consistent with business necessity.” The dispatcher job required an ability to focus and concentrate at all times. Wisbey’s own statements regarding her inability to do that was sufficient business justification for the City to ask for an examination to determine whether she could safely continue in that job.

While this decision might seem like a semantic one, it is critical to employers. This case underscores the fact that employers are permitted to use reasonable means to determine whether an employee’s troubling behavior or behavior-related job difficulties limit that person’s ability to do his or her job, and that such reasonable means do not justify an ADA claim. Fitness-for-duty exams typically have been considered by courts to be a reasonable means of making that determination. The reasonableness of an exam will be underscored when the employer can articulate legitimate, non-discriminatory reasons to question the employee’s ability to perform his or her duties.
 

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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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A medical intern who misdiagnosed patients (including mistakenly identifying a patient as deceased), prescribed inappropriate medications or incorrect dosages, and who was “extremely argumentative” with his supervisors and co-workers was unable to perform the essential functions of his job and therefore, according to the 4th U.S. Circuit Court of Appeals, was not a qualified individual with a disability for purposes of the Americans with Disabilities Act. Shin v. Univ. of Maryland Medical System Corporation, 4th Circ., No. 09-1126, March 11, 2010.

Frank Shin, M.D., began a medical internship with the University of Maryland Medical System Corporation (UMMSC) in June of 2006. He initially performed his duties in a satisfactory manner, scoring 8 out of 10 for overall competence. However, after the first month, Dr. Shin’s scores began to fall, and by August, his overall rating was 3 out of 10. Further, at that point, Shin had to be “shadowed heavily” by resident doctors, in order to prevent medical errors. Shin’s workload subsequently was decreased to three patients, but support of other residents was still necessary.

Shin’s falling performance ratings prompted a face-to-face meeting with his supervisor to address the issues. At that meeting, an action plan was developed, further reducing Shin’s patient load to two, and requiring him to interact frequently with others who supported him. When after two weeks, Shin’s performance deteriorated further, he was urged to contact the Employee Assistance Program. On September 1, 2006, Shin was put on probation, and was required to meet certain criteria to remain in the internship program. Shin’s overall competence scores failed to improve during probation, with one of his supervising doctors noting that Shin was “should no longer be allowed to continue in a direct patient care role.”

UMMSC made assistance available to Shin by allowing him to see fewer patients with less complex medical issues, by asking residents to help with Shin’s workload, and by excusing Shin from participating in certain internship program requirements. Despite this assistance, Shin continued to have problems and ultimately was diagnosed with ADD with “significant impairment in visual-spatial reasoning and visual memory.” Although Shin sought expert help, in March 2007, his own doctor determined that Shin had reached maximum medical improvement, but was unfit to return to work as an intern. UMMSC then terminated Shin’s employment. That termination was upheld after an internal appeal procedure held in June 2007.

Dr. Shin ultimately filed a lawsuit against UMMSC and Dr. Wolfsthal under the ADA, alleging discriminatory discharge, and failure to provide a reasonable accommodation. The district court granted summary judgment in favor of the defendants. That decision was upheld by the Fourth Circuit. (Note that the Fourth Circuit reviewed the case under the “old” ADA, because the ADA Amendments Act, which took effect on January 1, 2009, was not applied retroactively.)

For both wrongful termination and failure to accommodate claims, a plaintiff must establish that he or she was a “qualified individual with a disability” in order to be eligible for the protections offered under the ADA. That Act defines a “qualified” individual as someone with a disability who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Therefore, in order to survive a motion for summary judgment, Shin had to show not only that he was disabled, but that he qualified for the protections of the ADA.

To prove that he was qualified, Shin had to show that he was able to fulfil the essential functions of his job. Those essential functions, in essence, were “to provide competent medical care to patients with efficiency and reasonable autonomy.” The available evidence and testimony clearly indicated various problems and concerns related to Shin’s performance of those functions. The Court held that Shin was unable to perform the essential functions of his job and, therefore, that he was not qualified to bring a lawsuit under the ADA. The Court went a step further, and addressed Shin’s claim that he would have been “qualified” had UMMSC provided certain requested accommodation, including a permanent reduction in the number of patients for whom Shin was responsible. According to the Court, the ADA does not require an employer to assign an employee to “permanent light duty” or to reallocate job duties in order to change the essential functions of a job. On that basis, the Court held that no reasonable jury could conclude that a reduced work load was a reasonable accommodation under these facts.

According to the Fourth Circuit, Dr. Shin was not a qualified individual with a disability for purposes of the ADA - because he was not able to perform the essential function of his job - and his requested accommodations were unreasonable under the circumstances. Therefore, Shin was unable to support his claims under the ADA. With many hospital systems moving to an “employment” model for physicians, it is critically important that hospital administrators and managers understand the employment-law implications of actions involving individuals in protected categories, and understand that ADA claims typically must be reviewed on a case-by-case basis.
 

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The Americans with Disabilities Act makes it illegal for employers to discriminate against disabled individuals. To that end, the Act includes a provision that, prior to an actual offer of employment, an employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” The only inquiry that can be made is whether the applicant is able to perform job-related functions. In a case of first impression, the 11th U.S. Circuit Court of Appeals has held that a non-disabled employee can sue an employer for prohibited medical inquiry under the ADA. Harrison v. Benchmark Electronics Huntsville, Inc., 11th Cir., No. 08-16656, Jan. 11, 2010.

John Harrison was assigned as a temporary employee with Benchmark Electronics Huntsville, Inc. (BEHI) in 2005, working to repair and test electronic boards. At that time, if a BEHI supervisor believed that a temporary employee would meet the company’s needs, he could invite that individual to submit an application for permanent employment, which required undergoing a drug test and background screening.

In May 2005, Harrison submitted an employment application to BEHI at the suggestion of his supervisor, Don Anthony, and underwent the required drug screening and background check. At that point, Harrison had never been informed of any performance deficiencies or problems with his work attitude. Harrison’s drug screening came back positive which, under BEHI’s policy, required review by a Medical Review Officer (MRO). Anthony was contacted by BEHI’s HR department and was asked to “send [Harrison] her way.” Although HR did not tell Anthony about the positive drug test, Anthony discovered that information on his own, and informed Harrison that the test had come back positive for barbiturates. Harrison stated that he had a prescription for the drug, and Anthony asked him to produce it. Anthony immediately called the MRO and passed the phone to Harrison. Anthony remained in the room while Harrison answered a series of questions from the MRO, explaining that he had been diagnosed with epilepsy at age two, and took barbiturates to control the effects of that disease.

Shortly afterward, Harrison was informed by the MRO that his drug test had been cleared. However, Anthony told HR not to prepare an offer letter for Harrison. He further asked the temporary agency not to return Harrison to BEHI, stating that Harrison had “performance and attitude problems.” Harrison immediately was fired from the agency.

Harrison filed a lawsuit against BEHI under the ADA, alleging that the company had engaged in improper medical inquiry. BEHI moved for summary judgment which was granted by the district court. That decision was reversed by the 11th Circuit on appeal. The primary basis for the reversal was the appellate court’s answer to the question of whether a non-disabled individual can state a private cause of action for a prohibited medical inquiry under the ADA. (The EEOC had determined that Harrison’s epilepsy did not rise to the level of “disability” under the ADA. Although the 11th Circuit had not previously addressed that issue, it held – consistently with sister circuits which have specifically addressed that question – that the ADA precludes inquiries with respect to any applicant who has not yet received a job offer, whether or not the individual is disabled under the ADA.

This case raises an interesting issue. The ADA specifically recognizes an exemption for pre-employment drug tests (“a test to determine the illegal use of drugs shall not be considered a medical examination”), and allows an employer to validate the test results by asking about lawful drug use or possible explanations for the positive result other than illegal use of drugs. However, as this case makes clear, disability-related questions are prohibited. In fact, the Court in this case quotes the legislative history of the ADA to point out that the drug-test exemption “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given.” Therefore, while an employer may conduct follow-up questions in response to a positive drug test, there are specific limitations on the types of information that can be elicited by someone other than a medical officer. While BEHI’s procedure to have an MRO conduct follow-up questioning may have been consistent with the ADA, Anthony’s presence during Harrison’s responses and revelation of his medical condition was held by this Court to preclude summary judgment in favor of the company.
 

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Under the Americans with Disabilities Act and parallel state statutes, an employer cannot take an adverse action against an employee because of that person’s disability or perceived disability. However, an employer is justified in taking such action if the action is based upon a legitimate business reason, and if that reason is not simply a pretext for discrimination. A Tennessee district court has held that firing an employee because of fear of potential violence by that individual is a “legitimate non-discriminatory reason” for an employee’s termination, in spite of the fact that the employee had been diagnosed with bi-polar disorder. Calandriello v. Tennessee Processing Ctr., M.D. Tenn., No. 3:08-1099, Dec. 15, 2009.

Robert Calandriello sued his former employer, Tennessee Processing Center (TPC) for disability discrimination under the state’s anti-discrimination statute. The company filed a motion for summary judgment, which was granted by the district court. The court’s decision was premised on the third step of the shifting burden analysis, which requires an employee to disprove the company’s “legitimate business reason” for an adverse employment action.

Beginning in 2005, Calandriello worked at TPC’s Nashville location, which processed business data on which U.S. government stock and wire transfers were based. Because of the nature of the business conducted, TPC operated under certain security protections including FBI record checks for employees, a gated facility, and retinal scans for employee access.

In September 2007, TPC issued a “final warning” to Calandriello after learning that Calandriello had used company equipment to modify a company poster by adding a photo of Charles Manson. During the disciplinary process, Calandriello acknowledged that he made a poor choice in displaying the poster, but informed TPC (for the first time) that he suffered from bi-polar disorder which, he said caused that lapse in judgment. Calandriello also argued that because he had not destroyed company property, threatened anyone, or caused financial loss to the company, he should be exempt from disciplinary action, because he was entitled to “accommodation” under the ADA.

In spite of that, Calandriello was fired after further investigation showed that he had viewed online images of violence, assault weapons, and serial killers on his company computer. TPC’s action was based on a “loss of confidence” in Calandriello, and a concern that Calandriell’s continued employment posed a risk of workplace violence. Calandriello admitted to viewing sites about assault weapons and serial killers, but argued that guns were a “constant conversation topic” in the workplace at TPC.

Nonetheless, the court found in favor of TPC, holding that “fear of potential violence is a legitimate non-discriminatory reason for an adverse employment action,” including termination, and quoted a federal appellate court opinion that the ADA “does not require an employer to retain a potentially violent employee.” It further found that Calandriello was unable to provide evidence that the reason given by TPC for the termination was simply a pretext for discrimination. TPC was able to substantiate its position by citing a written company policy that specifically prohibited employees from visiting internet sites that are “known to contain or are suspected of containing objectionable matter” including “profane or otherwise inflammatory material.”

This case should not be viewed as a blank check for the discipline or termination of employees with bi-polar disorder. The deciding factors here included the high security workplace and the written company policies related to company computers. Further, the fact that the company was unaware of Calandriello’s impairment until after its initial disciplinary action supports its argument that the termination was based on “legitimate non-discriminatory” reasons. Employers should view issues related to medical and psychological impairments on a case-by-case basis to assure compliance with both state and federal laws.
 

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In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee who requested a leave of absence to consult an orthopedic surgeon was unable to prove that the absence would allow him to perform the essential functions of his position. Therefore, the absence was not a "reasonable accommodation" for purposes of the ADA. Graves v. Finch Pruyn & Co., 2d Cir., No. 09-1444, unpublished, 11/17/09.

George Graves worked as a paper inspector for Finch Pruyn & Company. Graves requested an unpaid leave of absence from his job to consult with a surgeon about a foot problem from which he suffered. When Graves subsequently was terminated from his employment, he sued the company for discrimination under the Americans with Disabilities Act. Finch's motion for summary judgment was granted by the district court, which held that the leave sought by Graves was not a reasonable accommodation and, therefore, that Graves was unable to set forth the required prima facie case. On appeal, that decision was upheld by the Second Circuit.

Under the ADA a "reasonable accommodation" is something that enables a disabled employee to perform the essential functions of his job. An employer typically is required to engage in an interactive process with a disabled employee and to work with him to implement a reasonable accommodation, unless such accommodation creates an undue hardship for the company. In Grave's case, there was no dispute that immediately prior to the request for leave, Graves could not perform the essential functions of his job, which required standing for long periods of time and lifting and pushing large rolls of paper. His request for a leave of absence was for the specific purpose of consulting with a surgeon. However, the request included no assurance that such consultation would then allow Graves to be able to perform the essential functions of his job. In fact, a report from one of Graves doctors indicated that it was "unlikely" that Graves could return to his previous occupation after the contemplated surgery. Further, the same doctor provided a report that ultimately allowed Graves to qualify for a disability retirement. Based on all of this, the Court concluded that the evidence did not provide assurance that Graves' would ever be able to perform the essential functions of his job, even with the request two-week leave of absence. Graves therefore could not support the element of his prima facia case that required him to show that he was able to do the essential functions of his job with an accommodation.

The Court made an additional, and notable, point: that an employee may not rely on a company's failure to engage in the interactive process if he cannot also show that a reasonable accommodation actually exists at the time of the complained-of adverse action. Employers should not interpret this holding to mean that they can ignore the obligation to interact with an employee regarding a requested accommodation. Instead, an employer should recognize that before rejecting an employee's request for job modification, full and considered evaluation of the proposed "accommodation" should be done in order to determine whether such request will enable the individual to return to his or her essential functions.

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In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee of the New York City Department of Education could not establish a prima facie case of disability discrimination, because she could not prove herself to be “otherwise qualified” within the meaning of the Americans with Disabilities Act (ADA). Rios v. Dept. of Education, 2d Cir., No. 08-1262-cv, unpublished, November 2, 2009.

Wilda Rios, an employee of the New York City Department of Education (DOE), alleged that her employment termination was based upon her disability, and that the employer’s claim that she was terminated for attendance policy violations was simply a pretext for that discrimination. When the district court granted summary judgment in favor of the Department of Education, Rios appealed. The Second Circuit affirmed the decision, finding that Rios’ frequent absences removed her from the protection of the ADA.

Discriminatory discharge claims under the ADA are reviewed under the McDonnell Douglas shifting burden analysis. That analysis requires the plaintiff first to set forth a prima facie case showing that he or she is disabled within the meaning of the ADA and is “otherwise qualified” to perform the essential functions of the job in spite of the disability, with or without reasonable accommodation. Next, the employer is required to proffer a “legitimate business reason” for its adverse employment action. The final burden shifts back to the plaintiff, who then must prove that the employer’s proffered reason is a pretext, and that the actual reason for the adverse action is discrimination.

In Rios’ case, there was documentary evidence that Rios “repeatedly failed to show up for work on time or at all for a variety of reasons, many of which were unrelated to her claimed disability.” In response to those absences, the DOE imposed certain disciplinary actions, and ultimately terminated Rios’ employment.

While Rios claimed that her firing was based upon her disability, the DOE argued that her attendance at work was an essential function of her position. The Court agreed with the employer, and specifically found that by imposing discipline for Rios’ excessive absences, the DOE demonstrated the essential nature of Rios’ attendance and punctuality to her job. Because Rios was unable to establish a regular attendance pattern, she was not “otherwise qualified” to fulfill one of the essential functions of the position, and therefore was unable to establish a prima facie case under the ADA. In addition, even if the Court had found that Rios’ prima facie case had been effectively established, the DOE’s motion for summary judgment would have been granted on the basis that Rios showed no actual evidence that the DOE’s legitimate business reason for Rios’ firing was simply a pretext for discrimination.

This case shows the importance of the consistent enforcement of an employer’s attendance policy (and documentation of an employee’s violation of that policy) to the defense of a claim of discrimination under the ADA. By implementing and enforcing such a policy, an employer indicates the essential nature of an employee’s attendance, and can use such information to underscore the legitimacy of disciplinary actions related to an employee’s violation of the same.
 

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The Rehabilitation Act of 1973 was the first major federal statute to focus on the rights of individuals with medical impairments. Section 504 of the Act creates a private right of action for individuals claiming to have been discriminated against in any “program or activity” receiving federal financial assistance. Courts have included federally funded employment as one such “program.”

Amendments to the Rehabilitation Act have incorporated certain standards and remedies from other civil rights laws, and specifically have incorporated the standards of the Americans with Disabilities Act that determine whether employment discrimination has occurred. The 9th U.S. Circuit Court of Appeals recently addressed an issue on which appellate courts are divided, and has held that unlike the ADA, the Rehabilitation Act protects independent contractors as well as employees. Fleming v. Yuma Regional Medical Center, 9th Cir., No. 07-16427, 11/19/09.

Dr. Lester Fleming entered into a contract in May of 2005 to provide anesthesiology services to Yuma Regional Medical Center in Yuma, Arizona. Prior to beginning work in November of that year, Fleming was asked – and refused – to sign an addendum to his employment contract that would have precluded a schedule that accommodated Fleming’s sickle cell anemia. Based on that refusal, Fleming’s employment contract was cancelled. Fleming sued Yuma for breach of contract and for violation of Section 504 of the Rehabilitation Act. The district court granted summary judgment in favor of Yuma, ruling that Fleming was an independent contractor and, as such, was not protected from disability discrimination by the Rehabilitation Act. Fleming did not dispute his independent contractor status, but appealed the determination related to whether he was covered under the Act.

The Ninth Circuit reversed the dismissal, ruling consistently with a prior Tenth Circuit decision that Section 504 incorporates only the ADA’s standards for what conduct violates the Act, and not the definition of who is covered by the protections of the Act. The Court based its determination on the fact that the Rehab Act is broader than the ADA, covering any “otherwise qualified individual” who has been excluded from a program receiving federal funds, and not just employees. Further, the programs covered under Section 504 are all such operations, not just employment, whereas the ADA is limited to the employer-employee relationship. Because Congress did not use general language when it referred to the ADA in Section 504, and did not restrict the scope of the Act to employment, the Ninth Circuit was hesitant to “reduce the express scope of the Rehabilitation Act by wholesale adoption of definitions from another Act.”

The Ninth Circuit’s decision puts it in direct conflict with the Sixth and Eighth Circuits, each of which previously has held that Section 504 does incorporate the ADA’s employer-employee relationship requirement into the Rehabilitation Act. While the Ninth Circuit’s opinion spells out the rationale for its divergence from these decisions, there still exists a major split in the Circuits on the issue, creating an issue of concern for employers and their attorneys in the remaining circuits, and one which they will be following until the issue is addressed, if ever, by the U.S. Supreme Court. In the meantime, employers should be aware of this decision, and should take it into account when making decisions related to employees and independent contractors with medical impairments.

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The 9th U.S. Circuit Court of Appeals has held that a teacher’s statements on behalf of disabled students were “protected activity” under the ADA, and that the teacher had standing to sue for retaliation under the ADA and Section 504 of the Rehabilitation Act. Barker v. Riverside County Office of Education, 9th Cir., No. 07-56313, Oct. 23, 2009.

Susan Lee Barker was hired as a Resource Specialist Program teacher with the Riverside County Office of Education in California in 2002. As early as 2003, Baker began to express her concerns to the County regarding its special education services for students with disabilities, and complained that the services did not comply with state or federal law. In 2005, Barker and a co-worker filed a lawsuit with the federal Department of Education’s Office related to those issues.

Barker resigned on August 1, 2006, stating that her working conditions had become intolerable after she filed the 2005 complaint. She subsequently filed a federal court retaliation claim under the ADA and the Rehabilitation Act, alleging that she was constructively discharges by being excluded from meetings, that her caseload was reduced, and that she was refused certain work, all because of her support of the students and complaints on their behalf. The district court granted the County’s motion to dismiss the case, finding that Barker lacked standing to sue for retaliation under either of the two statutes.

The Ninth Circuit reversed, finding that both the ADA and the Rehabilitation Act include a broad anti-retaliation provision that shield’s “any individual” who is harmed after attempting to protect the rights of the disabled. The County argued that Barker could not sue because she was not a “qualified individual with a disability” and that she had no “close relationship” to the disabled students. However, the Ninth Circuit specifically found that Section 504 of the Rehabilitation Act grants standing to non-disabled people who are retaliated against for attempting to protect the rights of the disabled, as does Title II (the “public accommodation” provision) of the ADA.

The interesting issue in this case is that the lower court automatically analyzed the case under Title I (the “non-discrimination in employment” provision) of the ADA, because Barker was suing her employer. However, Barker’s claim addressed the County’s relationship with the students, and was appropriately brought under Title II. Based on this case, public employers should carefully analyze issues brought by employees regarding individuals with disabilities, and should be aware that adverse actions taken against such employees could have implications under the ADA or the Rehab Act.
 

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Under the Americans with Disabilities Act, employers and employees are required to engage in an interactive process with respect to a disabled employee’s request for a reasonable accommodation. In cases of psychological disability - depression, for example - necessary accommodations may be non-obvious to the employer. In those cases, courts have held that in order to trigger an employer’s obligation to provide accommodation, a disabled employee must make the employer aware of any non-obvious, medically necessary accommodations by supplying corroborating evidence, such as a doctor’s note or statement. Recently, the 7th U.S. Circuit Court of Appeals reversed a lower court’s dismissal of a case, and found that a school failed to engage in the required interactive process after a teacher provided a doctor’s statement that linked the teacher’s Seasonal Affective Disorder depression to the lack of windows in her classroom. Ekstrand v. Sch. Dist. of Somerset, 7th Cir., No. 09-1853, Oct. 6, 2009.

Renae Ekstrand taught kindergarten from 2000 to 2005 at Somerset Elementary School in Wisconsin. In 2005, Ekstrand’s request to be transferred to teach first grade was granted; she was assigned to a classroom that lacked exterior windows. At that time, Ekstrand informed the principal that she suffered from Seasonal Affective Disorder (“SAD”), a form of depression, and would have difficulties teaching without access to natural light. While two alternate rooms were available, both with windows, no transfer to either of those rooms was made. During the initial weeks of the 2005 school year, Ekstrand’s health declined, and she continued to ask for a room with access to exterior windows, which was denied. However, during that same time, the school did address Ekstrand’s requests related to other work area issues, including inadequate ventilation and the lack of various educational necessities, like bulletin boards and a locking cabinet. Ekstrand’s health problems worsened, and on October 17, her doctor placed her on medication and advised a leave of absence for the remainder of the term.

During the following months, Ekstrand continued to ask for the room change, advising the school that she would be able to return under that condition. On November 28, 2005, Ekstrand’s psychologist notified the school district, through its representative, of the importance of natural light for individuals with a history of SAD, and opined that Ekstrand’s depression was a direct result of her transfer to a room lacking access to natural light. Still, the school district did not make the requested room change, and Ekstrand ultimately left her employment at Somerset and began teaching elsewhere.

In 2008, Ekstrand sued the school district, alleging failure to accommodate, as well as constructive discharge. A federal district court granted the school district’s motion for summary judgment on both claims, holding that the school engaged in the interactive process when it addressed Ekstrand’s other work-related issues, and that the school’s conduct did not amount to a constructive discharge. On appeal, the 7th Circuit upheld dismissal of the discharge claim, but reversed the ADA dismissal. The reversal was based primarily on the fact that once it was aware of natural light’s medical necessity to Ekstrand (after being informed by Ekstrand herself that she was willing and able to return to work in a classroom with access to such light), the school district was obligated to provide that requested accommodation, unless it could show that the request would impose an “undue hardship” for the school. After reviewing the proffered evidence related to the proposed classroom change, the Court determined that there would be “little hardship” related to the switch, and reversed the dismissal of Ekstrand’s claim on that basis.

While the ADA is focused primarily on the interests of disabled employees, the Act’s “reasonableness” standard regarding the interactive process protects the interests of employers by allowing them to show that a requested accommodation would create an undue hardship. However, not every non-zero cost to an employer will be viewed by the courts as “undue” hardship. In this case, the evidence produced by the school indicated that the cost and disruption associated with the classroom change would have been “modest,” leading the Court to find that once the school was informed by the doctor that Ekstrand’s depression was cause by lack of natural light, an obligation was created that either required the school to make the change, or prove that the hardship generated by the change would be significant. Neither occurred, and Ekstrand’s case will go forward on the issue of whether the school failed in its duty to accommodate. Employers should recognize when an accommodation has been requested, full and considered evaluation of the costs and effects should be done promptly, and documentation of those efforts should be complete, in order to support the employer’s decision with respect to the request.
 

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As defined under the Americans with Disabilities Act (ADA), the term “discriminate” includes an employer’s failure to make reasonable accommodations to the limitations of a disabled employee. Reasonable accommodation may include reassignment to a vacant position within the company. The 10th U.S. Circuit court of Appeals recently held that a disabled employee could not support her failure-to-accommodate claim under the ADA, because she did not present evidence of any specific vacant positions to which she could have been transferred. Iverson v. City of Shawnee, Kansas, 10th Cir., No. 08-3264, June 17, 2009.

Michelle Iverson, a police officer with the City of Shawnee, Kansas, suffered a back injury while on duty in 2005. After undergoing surgery for her condition, Iverson was unable to pass a re-qualification test to return to her position as a police officer. She then requested accommodation in the form of a transfer to an open assignment with the City as a detective or non-officer, but was told that there were no jobs available. Iverson filed suit, claiming that she “could have performed numerous positions within the [City] with or without reasonable accommodation.” However, she did not specifically identify any position for which she believed herself to be qualified. Based on that failure, the lower court entered summary judgment in favor of the City. That decision was upheld on appeal to the Tenth Circuit.

For an employee to establish a prima facie case in a failure-to-accommodate claim, the employee must show that she is disabled, that accommodation within the existing job cannot reasonably be accomplished, that she has asked for reassignment to a vacant position, that she is qualified (with or without reasonable accommodation) to perform one or more vacant jobs, and that she has suffered injury because the employer did not offer reassignment to any appropriate vacant position. The Tenth Circuit held that these criteria assume that the burden is on the employee to specifically identify the vacant position or positions for which she believes herself to be qualified. Without such information, the employee cannot subsequently claim that the company’s failure to engage in the interactive process has caused an injury because there is no actual evidence that the interactive process would have likely produced a reasonable accommodation.

In Iverson’s case, she alleged generally that she “could have performed numerous positions within the [City] with or without accommodation,” and, in fact, argued that she could have performed positions as “detective, records technician, police dispatcher, and clerical or administrative positions within the City.” However, she failed to identify any specific position as available at the time that she was requesting reassignment. That failure led the Court to hold in favor of the City.

While this decision is limited to the Tenth Circuit, the court’s rationale is clear: an employee alleging that her employer failed adequately participate in the ADA’s interactive process will lose on summary judgment if she fails to show that a reasonable accommodation was possible, and that the process would have led to such accommodation. This case does not create an excuse for employers’ non-participation in a search for reasonable accommodation of a disability. However, it does point out at least instance in which the employee’s failure to provide sufficient input into the process can keep a case from going forward to a jury.
 

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The 8th U.S. Circuit court of Appeals has upheld summary judgment in favor of an employer who terminated the employment of an individual undergoing cancer treatment. Peyton v. Fred’s Stores of Arkansas, Inc., 8th Cir., No. 08-2346, April 15, 2009. In that case, the Court held that because there was no reasonable accommodation that would have allowed the individual to perform the essential functions of her job during the period in which she was absent for treatment, there was no violation of the ADA.

An employer discriminates against an employee, in violation of the Americans with Disabilities Act, if the employer fails to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” However, ADA protection extends only to individuals who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.

Floyce Peyton, an experienced retail store manager, was hired by Fred’s Stores of Arkansas as the manager of its Heber Springs store. After successfully completing three weeks of management training, Peyton began work on January 6, 2006. On January 9, Peyton was diagnosed with ovarian cancer and immediately was hospitalized. On that same day, Peyton’s fiancée delivered a note, signed by Peyton’s physician, to the store’s assistant manager, which stated that “Floyce Peyton needs to be off work at least 1/9/06. Return date unknown.”

Peyton underwent surgery on January 12. In the following days, the area manager for Fred’s Stores attempted to discuss with Peyton what type of accommodation Peyton might need. At that time, Peyton responded that she did not know how long she would be out. The area manager then contacted the regional vice-president to inform him of the situation and to advise him that the store was without a manager. On January 14, the area manager again called Peyton to let her know that the company had to “let [her] go.” The assistant manager was then made the store manager at Heber Springs.

In March, Peyton was given a limited release for work by her physician. After six months of chemotherapy, she was deemed physically able to perform the duties that would have been required of her as manager of the Heber Springs store. Peyton subsequently filed a law suit against Fred’s Stores, alleging that the company failed to accommodate her disability. The lower court granted summary judgment on behalf of the company; that decision was upheld by the Eighth Circuit on appeal.

The parties agreed that Peyton was disabled because of her illness and treatment, and that there was no information to indicate when, if ever, she would be able top return to work. They also agreed that, at the time of her hospitalization and initial treatment, Peyton was unable to perform the essential functions of her store manager job, with or without accommodation. Therefore, Payton was not a “qualified individual with a disability” for purposes of the ADA at the time of her firing. Further, the Court found that Peyton’s inability to assert a return to work date would require the company to allow her an indefinite leave of absence which, it held, was per se unreasonable as an accommodation, as it would “burden [the employer] with the duty to see into the future,” which was not the intent of the ADA.

However, employers should not use this case as the basis for overlooking the interactive process required by the ADA when determining whether a reasonable accommodation exists. Because cancer treatment is specifically referenced in the ADA Amendments Act, employers should carefully review situations in which employees ask for accommodation for such treatment, and should assure that a sincere attempt is made to reasonably accommodate such individuals. Employers should pause before considering employment termination to assure that, in fact, the individual is unable to perform the essential functions of the job, and that there is no alternative to an indefinite absence.
 

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The Family and Medical Leave Act (FMLA) generally provides 12 weeks of unpaid leave during a 12-month period to an eligible employee suffering from a serious health condition. An employee who takes FMLA leave is entitled to be restored to the job he or she held at the time the leave commenced, or to an equivalent position. If, however, the employee is unable to return to work at the end of that 12-week period, he or she is no longer protected by the FMLA. Roberts v. The Health Association, 2d Circ., No. 07-3553-cv, February 3, 2009.

Laura Roberts was terminated from her employment with The Health Association (THA) in June 2004. At the time of her termination, Roberts had been out of work for approximately 10 weeks, on an approved FMLA leave. However, at the time of Roberts’ discharge, her doctor had opined that she would be unable to work until at least July 19, 2004, which would have come after the end of her 12-week leave.

Roberts sued her employer, alleging interference with her rights under the FMLA, and claiming retaliation for her exercise of those rights. The district court dismissed the claims, and Roberts appealed to the 2d U.S. Circuit Court of Appeals. The Second Circuit upheld the lower court’s decision on the basis that Roberts could not have returned to her original position at the end of her 12-week leave, based upon her doctor’s opinion. Therefore, the Court held, Roberts was not prejudiced by the early termination. In addition, THA actually paid Roberts for 12 weeks worth of health benefits, which is all to which she would have been entitled had she completed the 12 weeks of leave before being discharged.

In addition, Roberts was unable to show that the circumstances surrounding her termination created an inference of retaliation. In fact, the evidence showed that Roberts was made aware that her job was in jeopardy prior to her formal request for FMLA leave. That fact precluded Roberts from successfully alleging that her termination was based upon a protected FMLA leave request.

In addition to her FMLA claims, Roberts argued that THA violated the Americans with Disabilities Act when the company fired her because it regarded her as disabled. In order to succeed on that claim, Roberts would have to prove that THA regarded her as substantially limited in a major life activity. Where, as in this case, the “major life activity” at issue is working, an employee is required to show that the employer believes the individual to be suffering from a condition that prevents her from working in a broad range of jobs, not simply the job she previously held. Because Roberts did not provide such evidence regarding THA’s actions, the Second Circuit concluded that the lower court’s decision to dismiss the ADA claim was correct, as well.

The FMLA is one of the most administratively difficult federal anti-discrimination laws, partly because of its complexity, and partly because of its overlap with other federal statutes, as in this case. It is essential that an employer understand both its obligations under the FMLA, and the rights that can be appropriately exercised by an employer in dealing with individual employees with medical impairments and serious health conditions. In this case, the employer’s record keeping (which documented the early conversations with Roberts informing that her job was in jeopardy), along with the company’s willingness to treat Roberts fairly by allowing her to collect the 12 weeks of benefits to which she would have been entitled under the FMLA, supported the court’s decision that the company’s actions had a legitimate business basis, and did not violate federal law.

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U.S. Circuit Court of Appeals found that an employer’s failure to rehire an individual after layoff, based on the employee’s opiate-based prescription medication, did not violate the ADA. However, in an example of the overlap between the ADA and the FMLA, the court allowed the employee’s FMLA retaliation claim to go forward to trial, based upon a manager’s statements related to the same employee’s medical leave. Daugherty v. Sajar Plastics, Inc., No. 05-02787 (6^th Circ. Oct. 16, 2008).  

James Daugherty worked for Sajar Plastics as a maintenance technician from 1991 until his layoff on January 5, 2004. In that capacity, he maintained buildings and equipment, often using hand and power tools, and operated certain heavy machinery including forklifts and overhead cranes.

In 2000 and 2001, Daugherty suffered flare ups of a previous back injury. To manage pain associated with those flare ups, Daugherty was prescribed increasing doses of Oxycontin and Duragesic, both opiate-based medications. Daugherty also requested and was granted intermittent FMLA leave during period of increased pain. In November 2003, Daugherty requested a lengthy period of such leave, and provided a doctor’s note that he would be able to return to work in January 2004. Daugherty claims that Sajar’s HR Director (Alexander) told him at that time that if he took FMLA leave for that period, “there would not be a job waiting for [him] when [he] returned.” Alexander disputes that claim.

Soon after Daugherty went on leave, Sajar began a round of lay offs. Because Dougherty was the least senior maintenance worker, it was decided that he would be laid off upon his return from leave. However, within a month, Sajar experienced an increase in business and decided to recall Daugherty to work. Alexander made the re-hire contingent upon passing a physical examination conducted by Dr. Altemus, who was routinely used by the company for pre-employment physicals. While Dr. Altemus found Dougherty physically able to perform the functions of the position, he expressed concerns about Dougherty’s medications, stating that “the analgesics may mask the symptoms of re-injury,” and “may cause am impairment of perception or judgment which might lead to an injury to himself or others.” Sajar then called Daugherty and told him that if he could provide documentation regarding a “reduction in his medications,” the company would consider re-employing him. Dougherty failed to provide that documentation, even after repeated requests, and his employment ultimately was terminated.

Daugherty then filed a lawsuit alleging that Sajar regarded him as disabled and that it violated the ADA when it failed to rehire him. He also claimed that his termination was in retaliation for his FMLA leave. The lower court granted Sajar’s motion for summary judgment on both claims, and Daugherty appealed.

On appeal, the Sixth Circuit found that Sajar’s decision regarding Daugherty’s employment did not violate the ADA. To support a regarded-as-disabled claim, a plaintiff must show that the employer regards him as unable to perform a broad class or range of jobs. Dr. Altemus’ viewpoint regarding Dougherty’s medication restricted Dougherty only from the maintenance technician positions at Sajar and, therefore, was not sufficient to support his ADA regarded-as-disabled claim. However, the court reversed the lower court’s dismissal of Dougherty’s FMLA claim. The court held that Dougherty presented “direct evidence” of discrimination in the form of Alexander’s threat that the FMLA leave would affect Dougherty’s continued employment, and that a jury could find a “clear connection” between the FMLA leave and Sajar’s ultimate decision to terminate Dougherty’s employment.

As the number of cases filed under the “regarded as” provision of the ADA continues to increase, it is imperative for employers to be familiar with the standard of proof required to overcome that claim. In this case, the fact that the company was willing to continue to employ the individual if he was able to work with his physician to decrease the amount of his opiate-based medication indicated a perception on the part of the company that Dougherty was able to be employed in some capacity and, therefore, precluded a claim that the company was excluding Dougherty from a broad range of employment positions. In this case, the company’s effort to find a mutually beneficial resolution to the issue - while unsuccessful - had the ultimate effect of helping the company to avoid liability under the ADA.

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