Job restructuring is one of the accommodations that an employer must consider under the Americans with Disabilities Act (ADA) and its regulations. Recently, the 7th U.S. Circuit Court of Appeals held that if a minor adjustment to the work duties of a few other nursing home employees would have enabled the home’s hairdresser to perform the duty of pushing her customers’ wheelchairs to hairdressing appointments despite her disability, the nursing home’s refusal to consider making that adjustment was unlawful. Kaufmann v. Petersen Health Care VII, LLC, 7th Cir., 2014, No. 13-3661 (October 16, 2014). 

Debra Kaufmann began working as one of two hairdressers at Mason Point nursing home in 1981. On Mondays and Tuesdays, Kaufmann would wheel residents – who weighed between 75 to 400 pounds – one by one in their wheelchairs from their rooms to the nursing home’s beauty shop, do their hair, and wheel them back to their rooms, a journey that Kaufmann estimated took an average of two-and-one-half minutes. On her other work days, Kaufmann mainly did the hair of residents who either could get themselves to the beauty parlor, or who had to be visited in their rooms and, therefore, she rarely had to push a wheelchair on those days. Kaufmann also had some duties unrelated to hairdressing, such as helping out in the laundry room, and carrying breakfast trays to residents. 

In December 2010, Kaufmann underwent surgery that included placing a mesh lining to hold her bladder in place. She was released by her doctor to return to work eight weeks after the operation, but could not push over 20 pounds at the time. That limit ultimately was raised to 50 pounds, five months later. However, Kaufmann’s doctor instructed her not to push wheelchairs, stating that over time, that pushing would cause her mesh lining to tear loose and would then require surgical repair. 

On the basis of that warning, Kaufmann informed her employer that she could no longer push wheelchairs. In response, the nursing home’s administrator allegedly responded that the facility did not allow employees to work with permanent restrictions. Kaufmann’s suggestion that others could push the wheelchairs for her, or that she could work full time in the laundry room both were rejected without further discussion. 

Kaufmann quit her position at the nursing home and ultimately sued Manor Point under the ADA. Until her position was filled, the other hairdresser received assistance from other staff in the nursing home in wheeling residents to and from the beauty parlor. There was no evidence or testimony from the employer that this diversion of staff resources created an undue hardship or impaired care to other residents. 

The lower court granted summary judgment in favor of the employer, ruling that wheeling residents to and from beauty parlor appointments was an essential function of the hairdresser position. That ruling was based in part of the nursing home administrator’s statement that wheeling residents took 60 to 65 percent of Kaufmann’s work day, in spite of Kaufmann’s own estimate that it took 6 to 12 percent of her time, and only on Mondays and Tuesdays. 

On appeal, the 7th Circuit did a detailed analysis and comparison of the amounts of time asserted to have been taken in the transporting of the residents to the beauty parlor. It also compared that time to the time-per-resident generally spent by staff. Importantly, it pointed out that the wheeling duties had been reassigned without issue during the period between Kaufmann’s resignation and her replacement’s hire. Based on all of that analysis, the Court found that whether the wheelchair-pushing function was an essential function was a factual issue that had to be determined by a jury.

In addition to pointing out that an employer must engage in an “interactive process” to determine and appropriate accommodation under the circumstances presented, the 7th Circuit included several holdings to which employers should pay close attention:  

(1)   the fact that a restriction is permanent may not automatically excuse an employer from making an attempt to accommodate it;  

(2)   without proving that reassignment of the wheelchair duties created an undue hardship, the employer “might have a very hard time” setting forth a successful defense in this case; and 

(3)   “job restructuring” is one of the accommodations that an employer must consider under the ADA.