ADA

Workers’ compensation injuries may lead to coverage under the ADA.  A recent federal case provides a good example of this.  In Sutherland v. Peterson’s Oil Services, Inc., 126 F.4^th 728 (1^st Cir. 2025), Mr. Sutherland, a service technician, was injured in a work accident on October 8, 2019, two months after he was hired. He tore the meniscus of his knee in two places and also damaged his patella.

He continued to work for several months while experiencing swelling and pain in his knee.  He said he was working more than 40 hours per week on a regular basis.  He said that he twice requested a reduction of hours to 40 hours per week because of the pain in his knee.  In December 2019, Sutherland gave his supervisor a note from his doctor recommending a 30-hour workweek.  The record contained no evidence that his supervisor reached out to Sutherland to reduce his hours to 30 per week.  Sutherland continued to work regular days, sometimes up to nine hours per day.

Sutherland underwent knee surgery on January 27, 2020, and he was given leave for the next 12 weeks. On April 8, 2020, Sutherland texted his supervisor to let the company know that he had been cleared to return to work on April 20, 2020.  He said no one responded to him.  He said he tried three times to get a response.  Eventually he found out that his employment had been terminated, but he never received a formal notice.  Through discovery in the case, a letter emerged that listed the date of termination as April 20, 2020, although the letter was dated May 26, 2020. That April 20 date was the same date that the plaintiff’s doctor cleared him to recommence work.

Mr. Sutherland sued and alleged violations of his rights under the Americans with Disabilities Act.  Specifically, he argued that he was discriminated against and retaliated against in violation of the ADA.  He also argued that the company failed to make reasonable accommodation. The federal district court dismissed his case, granting summary judgment to his employer.  Mr. Sutherland appealed to the Court of Appeals for the First Circuit.

The Court of Appeals began its analysis by noting an important fact in this case: when Mr. Sutherland was hired, he negotiated with his employer an arrangement in which he would not have to perform installation work or cover night shifts.  In exchange, he promised to work Saturdays during the busy winter season.

The first issue that the Court of Appeals reviewed was whether Mr. Sutherland could make an argument that his knee injury constituted a disability under the ADA.   The district court found that his knee injury was temporary in nature and not substantially limiting. The Court of Appeals did not concur with this finding. The Court of Appeals said that Congress passed the ADAAA (ADA Amendments Act) in part to broaden the interpretation of term “major life activities.” The Court  commented that under the ADAAA, major life activities are not required to be of central importance to daily life.  EEOC Regulations specifically state that a temporary injury can still qualify as a disability if it is sufficiently severe.

The employer contended that Mr. Sutherland failed to support his case with adequate medical evidence.  In response, the Court of Appeals cited another federal case for the proposition that medical evidence is not always needed where “’a lay jury would have no difficulty grasping the connection between a knee injury and problems in conducting major life activities such as standing, walking, and bending.’” (citations omitted).

The Court of Appeals next considered whether Mr. Sutherland could show that he was a “qualified individual with a disability.”  He had to show that he could perform the essential functions of the job with or without accommodation.  Peterson’s argued that Mr. Sutherland could not be deemed a qualified individual because right from the start of his employment he was not doing installation work and night shift work. The Court of Appeals responded to this argument by noting Mr. Sutherland was hired with that specific understanding that he would not have to do installation and night shifts. In the opinion of the Court of Appeals, this initial arrangement between the parties could be interpreted by a jury to suggest that installation work and night shift work were not essential job functions at all.   Determining what is and what is not an essential function is not always as easy as one might think.

Concerning the anti-retaliation provision of the ADA, Sutherland argued that he was fired because he sought an accommodation of reduced hours.   The Court of Appeals suggested that this argument also needed to be addressed by a jury.  The Court noted that there is case law standing for the proposition that an employer can be found liable for retaliation even if the underlying claim of disability remains unproven. 

The final issue in this case had to do with the essence of the ADA, namely the obligation to make reasonable accommodations to a person with a disability.  The Court said that Congress recognized a part-time or modified work schedule as examples of possible reasonable accommodations.  Plaintiff argued that the company’s employee handbook defined “part-time” work as meaning less than 30 hours.  Plaintiff further contended that the company employed one part-time worker on its staff.  The Court summarized the various proofs that Sutherland had to demonstrate:  

1. He must prove that he has a disability within the meaning of the ADA;
2. He must  prove that he can perform the essential job functions with or without accommodation;
3. He must prove that Peterson’s was aware of his disability and did not make reasonable accommodation. The employer disputed this element of the case.  Plaintiff countered that he sent text messages to his supervisor requesting accommodations for his knee condition.
4. Further, he must show that the reasonable accommodation request would have enabled him to perform the essential job functions;
5. Lastly, Sutherland must also prove that the accommodation would have been feasible for his employer to make.

For its part, Peterson’s could defend against the request for accommodation of reduced hours by showing that such an accommodation would pose an undue hardship to the company.  

Based on all the foregoing considerations, the Court of Appeals vacated the summary judgment entered by the district court and allowed Mr. Sutherland to move forward with his ADA lawsuit. 

For employers this case serves as a reminder that the FMLA 12-week period of job protected leave is not the only law to consider when terminating an employee who may have a qualified ADA disability. In some instances, the ADA or equivalent state discrimination law (the Law Against Discrimination in New Jersey) may impose additional obligations on the employer.  Interestingly, this case did not involve a request for additional leave as a possible reasonable accommodation but rather a request for a modified work schedule.

The post Work-Related Knee Injury Can Constitute a Disability Under ADA appeared first on NJ Workers' Comp Blog.

Janice Hustvet worked for Courage Center, which merged with Allina Health System in 2013.  Hustvet worked for 15 years at Courage Center as an Independent Living Skills Specialist, educating, supporting and assisting clients with disabilities including spinal cord and brain injuries.

On May 13, 2013, Hustvet completed her pre-placement health assessment.  She acknowledged that she did not know if she had been immunized for rubella.  She later confirmed that she had not been immunized for rubella.  There was some confusion whether her job would require completion of a Respirator Medical Evaluation (“RME”).  Following the merger on July 1, 2013, Hustvet was informed that she had to submit a complete RME and take one dose of a Measles, Mumps, Rubella vaccine (“MMR vaccine”).

Hustvet never took the MMR vaccine.  She had had a severe case of mumps and measles, and she also had many allergies and chemical sensitivities.  However, she did agree to take a rubella vaccine only, (without the mumps and measles), but no such vaccine was available. When Hustvet refused to do take the MMR vaccine, her employment was terminated.

Hustvet sued Allina Health alleging discrimination under the ADA. The federal court ruled against Hustvet, and she appealed to the United States Court of Appeals for the Eighth Circuit.  Hustvet argued that she never received an offer of employment, and therefore the rules of post-offer medical examinations did not apply to her.  She also argued that she was a continuous employee and that the health screen requirement was imposed after her employment.

The Court of Appeals interpreted the letter Hustvet received during the merger period advising that she would soon be an employee of Allina Health as an offer of employment.  The Court noted that an employer has a right to apply entrance examination standards and withdraw an offer to those who do not meet those standards if the standards are job-related and consistent with business necessity.

Even if Hustvet were viewed as an existing employee and not subject to the post-offer requirement, the Court said that an employer can require an examination of an employee if that exam is shown to be job-related and consistent with business necessity.  The Court said: “… We believe Allina’s decision to force a class of employees (those employees with client contact who merged into the company) to undergo a health screen was job-related and consistent with a business necessity.  The information requested and the medical exam, which tested for immunity to infectious diseases, were related to essential, job-related abilities.  The undisputed evidence shows that the purposes of Allina’s health screen were to (a) insure that incoming employees who might come into contact with clients had immunity to communicable diseases as recommended by the Centers for Disease Control and Prevention. . .”

The Court noted that rubella has been eliminated in the United States but observed that rubella remains a common disease in many parts of the world and can be contracted through foreign travel.   The Court further observed that rubella is particularly dangerous to expectant mothers and infants.

Hustvet also argued that her multiple chemical sensitivities constituted a disability that Allina should have accommodated by foregoing the requirement of the MME.  The Court rejected this argument as well.  “There is insufficient evidence in the record to support the conclusion that Hustvet’s chemical sensitivities or allergies substantially limit her ability to perform major life activities.  She has never been hospitalized due to an allergic or chemical reaction, never seen an allergy specialist, and never been prescribed an EpiPen.  Nor has she ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.”

For these reasons, the Eighth Circuit affirmed summary judgment in favor of Allina.  The case shows that courts will support termination of applicants who cannot pass a post-offer examination if the standards are job-related and consistent with business necessity.  Readers may find this case at Hustvet v. Allina Health System, 910 F.3d 399 (8th Cir. 2018).

The post Health System Properly Withdrew Job Offer Due to Failure of Applicant to Complete Vaccine Testing appeared first on NJ Workers' Comp Blog.

One of the most difficult issues for employers to deal with is the work injury which leaves an employee with lasting difficulties in performing job duties.  Employers encounter this frequently with occupational claims such as carpal tunnel or epicondylitis where the employer settles the compensable workers’ compensation claim and then places the employee back in the same job that caused the medical problem, sometimes with reasonable accommodations and sometimes not.

An interesting case on this theme is Exby-Stolley v. Board of County Commissioners, Weld County, Colorado, 906 F.3d 900 (10^th Cir. 2018).  In that case, the plaintiff was a health inspector for the County and broke her right arm on the job, leading to two surgeries.  To compensate for her injury, she used makeshift devices for lifting, moving, and opening objects.  She even learned how to write using her non-dominant hand.  Inspections took her much longer than before, and she got fewer done in a day.

Plaintiff received a poor performance evaluation in March 2012 for a variety of reasons, partly because she was behind in her work.  She met with supervisors and HR to discuss job modifications.  Her workers’ compensation doctor prepared a report setting forth her job restrictions.  The County decided to offer her a part-time office job.  Plaintiff did not like the work.  She was paid the same as she had been making pre-injury by a combination of workers’ compensation benefits and salary.

Plaintiff returned to her workers’ compensation physician on June 6, 2012, and the doctor set permanent restrictions.  She met again with HR and supervisors.  Plaintiff suggested various accommodations, including piecing together various job functions from several jobs into one job.  All of her requests were rejected.  There was a dispute over whether the County asked her to submit a letter of resignation or not, but plaintiff did submit one effective June 29, 2012.  She wrote, “After a final evaluation with the physician and meeting with management it is apparent I am no longer able to perform the duties in my job description.”

The County disputed some of the allegations in the ensuing law suit.  The County said that plaintiff had been complaining about pain she was suffering in doing her job in March 2012 even before she saw her workers’ compensation doctor.  The County said it considered first reducing her time in the field on tasks which caused her pain.  Ultimately the County proposed the part-time office job.  The County also claimed that plaintiff requested a new position be created for her, which the County refused to do.  The County witnesses said they were rather surprised when plaintiff submitted the letter of resignation because they considered that they were still deep in the interactive process.

In plaintiff’s law suit, she alleged that the County violated the ADA because if failed to reasonably accommodate her disability and failed to engage in the interactive process.  The jury found that the County should prevail because plaintiff had not proven that she was discharged from employment or suffered other adverse action.  The jury accepted the County’s position that placing plaintiff in a temporary half-time office job with full pay supplemented by workers’ compensation was reasonable, noting that plaintiff agreed with the change; further, the County took no adverse action against plaintiff because she voluntarily resigned.

The plaintiff argued that all failures to accommodate are adverse employment actions.  Plaintiff’s counsel cited some case law for the proposition that an adverse employment action occurs when an employer refuses to make reasonable accommodations.  The Tenth Circuit Court of Appeals disagreed:

In this case the County argued to the jury that Plaintiff suffered no adverse employment action because it did not do anything negative to her.  Because of her physical limitations, it had given her a part-time office job with the same pay (when workers’-compensation benefits are included).  When she asked for the County to create a new position for her, it denied her request but, according to testimony it presented, it did not fire her or make any other changes in her employment status.  And County employees testified that they were planning to continue to look for ways to accommodate her.  We are not willing to say in these circumstances that an employer’s failure to immediately accommodate a request by a disabled employee is in itself an adverse employment action.

The case illustrates how difficult it is for an employer to deal with the problem that arises when an employee has a work-related condition that makes it difficult to perform essential job functions.  This employer did not do an FCE or perform a fitness-for-duty examination with analysis of the job functions.  That is often very helpful in similar situations.  But the employer in this case did try to make a reasonable accommodation for months.  The fact that damaged the plaintiff’s case the most in this case was her writing of the resignation letter when the requested accommodation of a new position was not granted by the employer.  That ended the interactive process summarily, and the general rule is that the party who ends the interactive process is the one that most often loses the law suit.

On December 18, 2018, a petition for rehearing en banc was granted in this matter, so we may be hearing more on this case in the near future.

The post County Did Not Violate ADA When It Proposed A Half-Time Office Job With Full Pay But Refused To Grant Other Accommodations Requested By Plaintiff appeared first on NJ Workers' Comp Blog.

Richard Helmrich worked as an Assistant Director of Food and Beverage at Mountain Creek Resort.  He was a large man, six-feet-tall with a body mass index between 40.27 and 47.53, above the threshold for obesity.  During his employment with the Resort he informed his boss of his weight and heart conditions.  His doctor diagnosed him as medically obese.  He provided his boss with a note that his cardiologist prepared for him, restricting the amount of weight that he was medically permitted to lift.

Helmrich testified that several individual defendants at the Resort regularly made observations about his weight, some of them by the owner himself within earshot of other employees.  One comment was that Helmrich needed to lose weight; another was that he needed to work harder at the gym to lose weight.  Yet another comment was that he was still fat.  Some of the comments were made in front of others, who would laugh at Helmrich’s expense.

On one occasion Helmrich notified his supervisor of one of these incidents in accordance with the Resort’s harassment policy.  A chef at the Resort said that Helmrich was “too large” and not “attractive” enough to approach customers’ tables in the restaurant.  Notwithstanding these kinds of comments, Helmrich never filed a formal complaint with Human Resources.

Helmrich did receive a written warning in July 2014 for poor performance.  He believed that his boss, Mr. Polchinksi, was delegating additional duties to him beyond the scope of his job and holding him to a higher standard than his subordinates.  He did not, however, tell anyone in supervision that he was being treated differently because of his weight.

Matters came to a head in December 2014 when his boss was promoted, thereby opening up the position of Director of Food and Beverage.  Helmrich was not told about the vacancy or encouraged to apply.  An employee who used to work under Helmrich by the name of Heaps was chosen for the position.  When that occurred, Helmrich met with supervision to ask why he was not considered for the position of Director of Food and Beverage.  He argued that he had the qualifications, holding an associate’s degree in hospitality management from Art Institute of New York.

Helmrich did not allege that he was denied the position due to his weight.  The company advised Helmrich that he was not chosen for the promotion because he failed to improve his work performance after the July 2014 written warning. The company told Helmrich that he was a good asset and a “great second man in command.” He was assured that he would be trained for future growth.

Helmrich resigned from his position on December 29, 2014 due to his perception of a hostile work environment.  He sued under both the ADA and New Jersey Law Against Discrimination.  The District Court noted that the United States Third Circuit has not expressly adopted obesity as a disability that substantially limits a major life activity.  The Court said, “Without excluding the possibility that obesity may under other circumstances constitute a disability under the ADA, the Court finds that it does not here.”  The Court observed that Helmrich never claimed that his obesity “substantially limits one or more major life activities.”  The Court added that although Helmrich had a weight lifting restriction, he did not dispute that his weight does not make it more difficult for him to stand, walk, bend or complete other movements necessary for him to work.

The Court next considered whether the Resort regarded Helmrich as being disabled.  “There is no question, therefore, that Defendants ‘regarded’ Plaintiff as obese.” The Court said that is not enough because there was no evidence that the Resort perceived him as having an impairment.  “Plaintiff does not argue that his weight limited his ability to stand, walk, bend, or complete other movements necessary for him to work.” The Court said that none of the defendants perceived Helmrich’s weight as physically interfering with his ability to do his job.  The Court found that there was insufficient evidence to prove the Resort regarded Helmrich as having a disability under the ADA.

The case is instructive.  It may be found at Helmrich v. Mountain Creek Resort Inc., (D.N.J. October 15, 2018).  It shows that unfortunate remarks like those directed at the plaintiff may not be actionable in court if the plaintiff never tells anyone about them in HR or supervision of files a formal complaint.

The post New Jersey Plaintiff Failed to Prove His Obesity Met Standard of an ADA Disability appeared first on NJ Workers' Comp Blog.

Jeremy Christensen worked as a patrol officer for the Warner Robins Police Department in the State of Georgia.  He completed a required 12-week certification training program.  However, he experienced shooting pains and leg cramps while driving on September 2, 2013. Nonetheless, he finished the program and began a one-year probationary period required for all new city employees.

Christensen experienced more shooting pains on October 8, 2013, and his hands shook uncontrollably.  Another officer had to drive him home from work.  He was advised to get a medical release from his physician, which he obtained from Dr. Al-Shroof.  However, the doctor did not clear petitioner to drive, so Christensen was assigned to a light-duty desk position in the Criminal Investigations Division. Eventually, Dr. Al-Shroof cleared petitioner to work with no restrictions except for a continued restriction against driving.

The City documented four specific disputes with Christensen during the one-year probationary period, the most serious of which was that Christensen only entered 10 of 270 supplemental reports to the CID’s electronic case management program in 2014.  As a result of these four disputes, the City terminated the employment of Christensen for unsatisfactory performance.

Christensen sued alleging disability discrimination.  The City in turn argued that Christensen was not a qualified individual under the ADA because he could not drive, and driving was admittedly an essential job function for a patrol officer.  Christensen disagreed and argued that he was able to work light duty for 10 months, and that he was qualified to perform the light duty position.  He seemed to argue that he was entitled to indefinite light duty.  The Court disagreed.  “The City accommodated Christensen’s disability by giving him light duty work that did not require him to drive. . . . That accommodation did not enable him to perform the essential function of a patrol officer; he still could not drive.”

Christensen further argued that the City could have continued him on light duty, and its past efforts to accommodate his driving restriction showed that the City could make long-term accommodations.  The Court again disagreed.  “Further, the City’s past accommodations, which exceeded the requirements of the ADA, do not bind the City to anything outside the requirements of the ADA.” The Court also agreed that the City offered valid, non-discriminatory reasons for terminating Christensen’s employment.

For these reasons, the Court granted the City’s motion for summary judgment.  The case shows that the elimination of an essential job functions is never required.  Christensen had to prove he could perform all the essential job functions.  The Court said that the mere fact that the City tried to accommodate Christensen for a lengthy period of time could not be held against the City.  This case can be found at Christensen v. City of Warner Robins, GA., 2018 WL 1177250 (D. GA 2018).

The post Police Officer Who Could Not Drive Failed In His Disability Discrimination Suit appeared first on NJ Workers' Comp Blog.