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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 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 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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