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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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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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