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.