ADA

An important ADA decision has come from the Court of Appeals in the Eighth Circuit in Morriss v. BNSF Railway Company, 817 F.3d 1104 (8th Cir. 2016).  The case stems from a post-offer medical examination.  Melvin Morriss applied for a machinist position and received a conditional offer of employment.  He was required to undergo a medical review because the position was safety sensitive.  He noted on the medical questionnaire that he weighed 270 pounds and stood 5’10” tall.  He was not currently a diabetic and did not have any health concerns.  He noted no limitations in daily activities.

BNSF doctors examined Morriss and noted that he weighed 281 pounds and had a body mass index of 40.9 in the first exam and 40.4 in the second exam.  Because his BMI exceeded the company’s qualification standards, the company’s medical department advised Morriss that he was not currently qualified due to significant health and safety risks related to Class 3 obesity, which entailed a BMI of 40 or greater.  BNSF then revoked the job offer, and Morriss sued alleging discrimination under the ADA.

Morriss lost in the district court, which noted that Morriss had denied suffering from any medical impairment on BNSF’s medical questionnaire.  His personal doctor said he did not suffer from any medical condition which caused his obesity.  He had no limitations at all.  The court therefore dismissed his case and Morriss appealed.

The Court of Appeals focused on whether Morriss had an impairment under the ADA.  Morriss argued that Congress stated in the ADAAA (Americans with Disabilities Act Amendments Act) that whether an impairment exists should not demand extensive analysis.  The Eighth Circuit rejected that argument and extensively analyzed the history of the definition of impairment going back to the original ADA guidance and statutory language. It considered the EEOC Interpretive Guidance on physical impairment:

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments.  The definition of the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.  The definition, likewise, does not include characteristic predisposition to illness or disease.  Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.

The Court held that plaintiff had to prove both that his weight falls outside the normal range AND that it is due to a physiological disorder.  Plaintiff challenged the Court’s interpretation by arguing that when Congress passed the ADAAA it specifically intended to construe the law in favor of broad coverage.  The Eighth Circuit answered by noting that Congress accomplished this broader coverage by adopting a far more generous definition of “substantial limitations of major life activities.”  It said,  “Notably, Congress did not express any disagreement with judicial interpretations of the term ‘physical impairment.‘”  In this way the Court overcame the argument that the ADAAA required a more expansive interpretation of obesity as an impairment.  “Thus, because the ADAAA did not alter that definition, pre-ADAAA case law holding that obesity qualifies as a physical impairment only if it results from an underlying physiological disorder or condition remains relevant and persuasive.”

The Court said “weight is merely a physical characteristic — not a physical impairment — unless it is both outside the normal range and the result of an underlying physiological disorder.” The Court said that even for morbid obesity, the same test must be met. For much the same reasons, the Court rejected plaintiff’s alternative argument that BNSF violated the ADA by regarding him as being disabled.  It said that the ADA only prohibits an employer from discriminating against an individual on the basis of a physical impairment. “But the ADA does not prohibit an employer from acting on some other basis, i.e., on its assessment that although no physical impairment currently exists, there is an unacceptable risk of a future physical impairment.”

In very clear language the Court emphasized, “The ADA does not prohibit discrimination based on a perception that a physical characteristic — as opposed to a physical impairment — may eventually lead to a physical impairment as defined under the Act.”

This case is very important to employers who do post-offer medical examinations and have similar standards for hiring in safety sensitive positions.  Employers must distinguish between physical characteristics as opposed to actual physical impairments.  Making decisions based on physical characteristics that are not now impairments is not discrimination under the ADA according to the Eighth Circuit Court of Appeals.  The key in this case was that Morriss himself said he had no physical impairment, as did his own physician.   Plaintiff was never able to show that he had a current impairment under the ADA, and the employer had a right to make decisions focused on physical characteristics that may eventually lead to physical impairments.

Most employers put limits on light duty and do not allow permanent light duty.  That was the case of the employer in the matter of Frazier-White v. David Gee, 2016 U.S. App. LEXIS 6318 (11th. Cir. 2016).  Plaintiff Frazier-White worked as a community service officer for the Hillsborough County Sheriff’s Office (HCSO).  She was responsible for security at a detention center.  She was injured in a work-related accident on July 29, 2010, when a heavy metal door closed on her right arm, pinning her against a door frame.  She was placed on light-duty status and temporarily assigned to a position as a records desk clerk. The HCSO policy limited light duty to 270 days in a two-year period.

During the period of time that plaintiff was on light duty from August 2010 to June 2011, she saw several doctors who found she was at maximal medical improvement and had no restrictions.  Plaintiff sought another evaluation in March 2011.  Her physician ordered an MRI of the neck, which showed degenerative abnormalities which the doctor thought were not caused by work but may have been aggravated by the work incident.  He too put Frazier-White at MMI with no restrictions but he did recommend a neurosurgical consult.

The sheriff’s department wrote to plaintiff several times as she approached the 270-day light duty limit.  In April 2011, plaintiff wrote to Gee saying she was still having problems with her neck and requested “an extension to continue to receive care.”  She did not specify the length of time she would need; nor did she suggest any accommodations that would allow her to return to full duty by April 24, 2011.

The HCSO Risk Management Director Richard Swann wrote to plaintiff on April 11, 2011 advising her that she had been on light duty for 256 days as of April 11, 2011.  He encouraged plaintiff to contact him about potential ADA accommodations that she may be requesting or to make applications for other civil service full-duty jobs.  Plaintiff did not respond,  leading HCSO to take disciplinary action.  A hearing was scheduled once plaintiff passed the 270-day light-duty limit.  By the time of the hearing, plaintiff had been on light duty for 299 days.  Swann asked plaintiff in the hearing whether she would return to full duty within a reasonable period of time.  Plaintiff replied that her most recent MRI showed serious spinal damage.  Her doctor was recommending a spinal fusion surgery.  She said she could not estimate when she could return to full duty.  She did not request any accommodations that would allow her to perform the essential functions of her job, and she did not apply for any other full-time jobs.  HCSO therefore terminated plaintiff’s employment as of June 20, 2011.

Following her termination, plaintiff sued under the ADA and the Florida Civil Rights Act alleging disability discrimination.  The federal court granted summary judgment to HCSO.  The Court of Appeals affirmed.  First the Court said, “To the extent Plaintiff intended to request a permanent light-duty position, it is undisputed that no such position existed.  SOP 213.00 provides that every HCSO employee is essential to its efficient operation, and that eligibility for light-duty status is thus limited to 270 days during a two-year period.  Defendant was not required by the ADA to create a permanent light-duty position especially for Plaintiff.”

Plaintiff produced records showing numerous vacancies in the HCSO during the time she was on light duty.  However, the Court pointed out that she never requested any of the positions.  Further, the Court observed that plaintiff’s testimony was that she could not have physically returned to any full-time work given her serious neck problems.  The Court concluded, “Plaintiff’s only response was to request an indefinite extension of her light-duty status, an unreasonable accommodation as a matter of law.”

This case is relevant for employers because most employers have policies that end light duty based either on a specific time limit or on reaching maximal medical improvement.  Such policies must be flexible enough to consider requests for reasonable accommodation under the ADA or state civil rights law even after the time limit has ended.  In this case HCSO wrote several times to the employee asking her if she was requesting accommodations or other positions that would allow her to return to work full duty.  The plaintiff in this case, as is quite common, simply wanted an indefinite leave extension.  Courts in just about every state believe that indefinite leave is simply an unreasonable request.

Sometimes alarming statements made at work justify a fitness examination.  In the case of Barnum v. The Ohio State University Medical Center, 2016 App. LEXIS 2957 (6^th Cir. 2016), the plaintiff worked as a Certified Registered Nurse Anesthetist.  In 2011, she was having issues at home due to a divorce and other family matters.  A co-employee advised her supervisor that Barnum said, “…maybe I’d be better off (if) I wasn’t here, maybe I should just put a gun to my head, maybe I should just not be here.”

An anesthesiologist at the hospital also became concerned about Barnum’s ability to concentrate on taking care of patients.  A surgeon had to ask her twice to raise a patient’s operating table because Barnum was not paying attention.  When the surgeon got her attention, Barnum said words to the effect that “I’m not worth anything or I’m worthless, what good does it do or what difference does it make, why should I even be here, maybe I should do everybody a favor and not be around.”  For her part, Barnum denied ever having this specific conversation with this doctor, but she did admit to being unable to adjust the height of the operating table and becoming frustrated and tearful.

Several doctors at the hospital became concerned about possible suicidal risk, leading the hospital to place Barnum on sick time leave for one to two weeks in October 2011. The hospital requested a fitness-for-duty examination with a psychiatrist.  Barnum was concerned about doing this in part because her husband worked as a case manager for the OSU mental health department and he might see the medical records. Eventually Barnum saw a psychiatrist, Dr. Masterson, on November 16, 2011.  The hospital wanted to make sure that this psychiatrist spoke with one of the physicians from the hospital who was aware of some of the comments that had been made at work.

Dr. Masterson prepared her report, which Barnum delivered on February 22, 2012.  In that report the doctor stated that Barnum was fit for duty and always had been.  However, the doctor had not spoken with the key physicians at the hospital, so the hospital would not allow Barnum to return to work. Barnum filed a Charge of Discrimination with the Ohio Civil Rights Commission in April 2012 because she was not being permitted to return to work.   Eventually, Barnum signed an authorization allowing Dr. Masterson to speak with two doctors at the hospital about her behavior and comments at work.  On July 31, 2012 Barnum presented a second medical report from Dr. Masterson stating that the conversations with the doctors did not change her opinion:  Barnum remained fit for duty.

On November 9, 2012, Barnum was reinstated to her position.  She then sued for discrimination on the basis of disability.  She argued that OSU violated the Americans with Disabilities Act by requiring her to undergo a medical examination that was not job related.   The Sixth Circuit Court of Appeals disagreed:

An employer may request a medical examination when ‘there is significant evidence that could cause a reasonable person to inquire as to whether the employee is still capable of performing her job… The burden is on the defendants in this case to show that the required mental-health evaluations were ‘job-related and consistent with business necessity.’

The Court said that in this case there were numerous and legitimate concerns about whether Barnum could perform job tasks and concentrate at work.  The hospital had been informed that Barnum had made a comment suggesting suicidal thoughts. “These circumstances constitute significant evidence that would cause a reasonable person to inquire whether the employee is still capable of performing her job.”  The Court therefore dismissed plaintiff’s lawsuit.

Reasonable accommodation has its limits as is noted in the case of Belasco v. Warrensville Heights City School District, 2015 U.S. App. LEXIS 21493 (6^th Cir. 2015).  Norma Belasco, a long-time teacher, began to have serious health issues in 2007, starting with renal failure with an eventual kidney transplant in 2013.  She also had heart surgery in 2010 and suffered from shortness of breath, balance problems and fatigue, sometimes requiring the use of a walker.

Over time her class became more and more uncontrolled with students fighting frequently and the Principal having to intervene fairly regularly.  The school security guard testified in a deposition that she had to respond to Belasco’s classroom four or five times a day.  Students would be out of their seats, playing loud music, and sometimes laying on the floor.  One student would occasionally draw lesson plans for other students to work on.

Belasco conceded in a deposition that she needed assistance but maintained that the assistance she needed was related to her disabilities:

Q. So when you requested assistance, you were requesting assistance to deal with their behaviors, not assistance to perform your duties as a result of the limitations that you experienced?

A. Well, they were related, obviously.

Q. How were they related?

A. As I said, my balance and things like that were not perfect, so I was a little afraid that the children would hurt each other, but also could knock me down, which has happened with teachers.

The School District was also concerned that Belasco was not implementing a program called “Action 100,” which was a Reading Challenge program.  Belasco was entering false data into the database, claiming she was instructed to do so.  She was absent from work frequently, missing 26 days in one semester, and was frequently late for school.

The School District arranged a fitness-for-duty examination which Belasco failed to pass.  She challenged the results of the fitness exam and set up her own examination, which she also failed.  Both fitness exams noted that Belasco could not ensure safety of students because that required quick reactions on the part of the teacher.  Belasco had poor balance and shortness of breath with minimal tasks.  Following these examinations, the District conducted a hearing in which Belasco requested the assignment to her of a teaching aide and the use of a walker.

The District refused to hire a teaching aide but did agree to allow the use of a walker if Belasco’s doctor could certify that using the walker would enable Belasco to perform the essential functions of her job.  After further hearings, the District terminated Belasco’s employment.  Belasco sued alleging that she was discriminated against based on her disabilities.

The federal court found in favor of the District, and Belasco appealed to the Court of Appeals for the Sixth Circuit.  The Court found that Belasco failed to show that she could safely perform the essential functions of her job, even if she was disabled.  The Court added that “Belasco does not explain why her failure to pass the relevant aspects of the fitness-for-duty tests cannot independently support the examiners’ conclusions that she was unable to perform essential functions of her job – namely, supervising students, ensuring their safety, and responding in emergencies.”

With regard to her requests for reasonable accommodations, the Court said that Belasco failed to produce a medical certification explaining how the use of a walker would allow her to perform the essential functions of her job.  Further, the Court said that the ADA does not require an employer to hire another person to help someone with a disability perform the essential job functions.  In this case the union collective bargaining agreement prohibited hiring part-time educational aides without the express consent of both the prospective aide and the union.  The union refused to provide its consent. Lastly, the Court said that Belasco’s request to shift unruly students to another classroom was unreasonable because the District should not have to reassign essential job functions to another employee.

The case illustrates a number of important principles: first, that requests for accommodations must be linked to helping the employee perform the essential job functions. Moreover, certain requests for accommodation are unreasonable on their face, particularly those requests that would require other employees to do part of the disabled employee’s job.

Wellness programs are becoming a new area of litigation as can be seen in Equal Employment Opportunity Commission  v. Flambeau, Inc., 2015 U.S. Dist. LEXIS 173482 (W. D. Wisconsin December 31, 2015).  The case involved a manufacturer of plastic products which offered its employees various employee benefits, including participation in a health insurance plan.  Employees were not required to participate in the health insurance plan, but for those employees who wanted to be in the plan, the company established a “wellness program.”

The wellness program had two parts:  a health risk assessment and a biometric test.  The health risk component required a participant to complete a questionnaire regarding his or her medical history, diet, mental and social health and job satisfaction.  The biometric test was akin to a routine physical examination, including height and weight measurements, a blood pressure test and a blood draw.

The information from the health risk assessment was only reported to the company in the aggregate, so as to make sure that the company had no idea of any individual participant’s results.  This information helped the employer estimate the cost of providing health insurance as well as appropriate premiums and co-pays.  The information also was useful to the company in formulating weight loss competitions and modified vending machine options.

For the year 2011, the company gave employees a $600 credit if they participated and completed both the health risk assessment and the biometric test.  This credit was eliminated in subsequent years, and health insurance was only offered to those employees who completed the wellness program.

This particular litigation arose from one employee, Mr. Arnold, who refused to complete the program tests.  That led the company to discontinue Arnold’s health insurance.  After losing his coverage, Arnold filed a union grievance and a complaint with the EEOC.  Eventually Arnold decided to participate in the program, and his benefits were reinstated.  However, the EEOC filed a lawsuit anyway, challenging the program.

The EEOC charged the company with violating the ADA, alleging that the company could not show that it had a job related need for the medical examination.  The company countered that the ADA has a “safe harbor” provision for insurance benefit plans.  Section 12201(c)(2) provides that the ADA “shall not be construed to prohibit or restrict” an employer from establishing or administering ‘the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks.”

The federal court Judge who heard the challenge agreed with the employer.  He held that the safe harbor noted in the ADA does apply to wellness programs as a term of defendant’s benefit plan.  The Judge also found that the wellness program was “based on underwriting risks, or administering such risks.”  42 U.S.C. 12202(c)(2). The Court said that underwriting risks, classifying risks or administering risks refer to the process of developing an insurance plan.

The wellness program requirement was clearly intended to assist defendant with underwriting, classifying or administering risks associated with the insurance plan.  The undisputed evidence establishes that defendant’s consultant used the data gathered through the wellness program to classify defendant’s projected insurance costs for the benefit year.  They then provided recommendations regarding what defendant should charge the plan participants for maintenance medications and preventative care.  They also made recommendations regarding plan premiums, which included a recommendation that defendant charge cigarette smokers higher premiums. Finally, after identifying the risks through the wellness program, defendant decided to purchase stop-loss insurance as a hedge against the possibility of unexpectedly large claims.  These types of decisions are a fundamental part of developing and administering an insurance plan and therefore fall squarely within the scope of the safe harbor.

 The Court also rejected the EEOC’s argument that the purpose of the ADA was to prohibit employers from asking for medical and disability-related information. The Court said the real purpose of the ADA is to eliminate discrimination against individuals with disabilities.

“Regardless of their disability status, all employees that wanted insurance had to complete the wellness program before enrolling in defendant’s plan.  Furthermore, there is no evidence that defendant used the information gathered from the tests and assessments to make disability-related distinctions with respect to employees’ benefits.”

Employers can expect more challenges to wellness programs in the future, as the EEOC seems to be decidedly opposed to such programs.

Paul Williams worked for ten years for the Township of Lakewood in the Department of Public Works (DPW).  On March 28, 2013, the Township Manager received an anonymous letter concerning Mr. Williams.  The writer said he was a co-worker and that he and other co-workers were in fear of their safety because Williams allegedly exhibited outbursts and tirades on a daily basis. The writer said three union stewards (initials provided for the stewards) witnessed such an outburst that very day.  The writer claimed to have complained to a former Director, and the writer maintained that Williams was a time bomb waiting to explode and that co-workers feared for their safety.

The Township took no action on the letter for eight months.  On December 2, 2013, The Township advised Williams that he must submit to a psychological fitness-for-duty examination, noting that failure to attend the exam would result in disciplinary action.  Williams challenged the examination as not meeting the ADA standard of being “job related and consistent with business necessity,” and he refused to attend the examination.

On December 18, 2013, The Township served Williams with a Preliminary Notice of Disciplinary Action seeking to remove him from employment for failing to report for the fitness-for-duty examination. Williams requested a public hearing, which took place on January 6, 2014. The Township rejected Williams’s argument and then issued a Final Notice of Disciplinary Action terminating his employment.

Following an appeal, the Office of Administrative Law heard testimony from the DPW Director.  He stated that Williams was sometimes confrontational and sometimes would walk away from someone who tried to speak with him.  The Director stated that he did not fear Williams.  He only wrote up Williams once over many years and never took any prior disciplinary action against Williams.  He further stated that as far as his work, Williams was no different than any other employee.

The Administrative Law Judge reversed the Township’s decision to remove Williams, observing that the Township did not investigate the accuracy of the letter’s allegations against Williams.  The ALJ also found no basis to connect the fitness-for-duty examination with Williams’ work duties.  The ALJ also criticized the Township’s eight month delay in acting on the letter.  Finally, the ALJ said that the Township could not discipline Williams for failing to attend an examination that the Township had no right to require.

Following the decision of the ALJ, the Township filed exceptions and on March 5, 2015, the Civil Service Commission reversed the ALJ’s determination.  However, the Commission did not mention the ADA at all in its reversal but rather focused on the insubordination of Williams in not attending the exam.  The Commission found against removal but imposed a six-month suspension.  Additionally, the Commission ordered that Williams submit to a psychological evaluation.

On appeal to the Appellate Division, Williams argued that psychological examinations are the same as any other medical examinations in that there must be a showing that the exam is job-related and consistent with business necessity under 42. U.S.C.A. 12112(d)(4)(A).  The Court commented that the EEOC further defined the “job-related and consistent with business necessity” standard as follows:

Generally, a disability-related inquiry or medical examination of an employee may be ‘job-related and consistent with business necessity’ when an employer ‘has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.’

The Court further drew from 29 C.F.R. 1630.2(r) for the proposition that “direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  The Court went on to cite to EEOC Guidance that an employer may be given credible evidence by a reliable third party that an employee has a medical condition or the employer may observe symptoms that an employee has a medical condition which impairs job performance or may pose a direct threat of harm to the employee or others.

The problem in this case, according to the Court, was that the Township had no reliable information from a third party (the anonymous letter did not meet the standard without investigation) and had not made independent observations of Williams’ alleged behavioral problems at work.  It said:

In other words, the employer must reasonably believe, either through direct observation or through reliable information received from credible sources, that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat.  Then, and only then, may the employer lawfully require the employee to undergo a psychological fitness-for-duty examination.

When information comes from a third party about an employee, the employer should reflect on the EEOC Guidance, which suggests that employers focus on the following: “(1) the relationship of the person providing the information to the employee about whom it is being provided; (2) the seriousness of the medical condition at issue; (3) the possible motivation of the person providing the information; (4) how the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else); and (5) other evidence that the employer has that bears on the reliability of the information provided.”

In ruling that the Township violated the ADA, the Court noted that there was no objective evidence of any threat posed by Williams and that even the DPW Director stated his performance was satisfactory.  The Court said the anonymous letter was not reliable. The identity of the writer was unknown, and no investigation was undertaken to confirm the allegations in the letter.    The case was remanded to the Civil Service Commission for a calculation of back pay due to Williams upon his reinstatement to work at the Township.

This case is well-reasoned and extremely helpful to employers in dealing with fitness-for-duty issues. Employers should keep this case at their desk when fitness-for-duty examinations are being contemplated because the case provides sensible guidance.  It is among the best cases an employer will read on the rules for fitness-for-duty examinations.

The Appellate Division tried to explain that the Township could have solicited information from the DPW Director and other supervisors regarding Williams’ performance.  That kind of credible information could have satisfied the job-related standard.  Or the Township could have contacted the three union stewards named in the anonymous letter for information on the alleged outbursts that took place.  In other words, the Township had to verify the allegations of the anonymous letter in order to reach a conclusion that the employee may pose a threat to himself or others. In this case, the Township failed to take these steps.  Vague rumors or innuendos about an employee clearly do not suffice under the law to justify a fitness-for-duty examination.  Direct observations by the employer are obviously the best evidence, but evidence from other employees that has been verified can also form the basis for a fitness-for-duty examination under the job-related and consistent with business necessity test.

This case can be found at In the Matter of Paul Williams, Township of Lakewood, 2016 N.J.Super. LEXIS 15, (App. Div. January 25, 2016).

Penelope Bertolotti worked for Autozone, Inc. as a Divisional Human Resources Generalist.  She was hired in early 2012 and sought a leave of absence due to personal illness on October 15, 2012.  She returned to work on October 29, 2012 only to request another leave of absence commencing on November 5, 2012.  At first her doctor put her out of work until December 3, 2012, but in subsequent notes he kept her out of work until February 1, 2012.  Her doctor noted that she would need surgery for her condition, which was gastroparesis, an incurable disease that affected Bertolotti’s ability to digest foods and liquids.  She wore a pacemaker to assist in digestion.  Bertolotti ended up having surgery on January 3, 2013.

In a letter dated December 12, 2012, AutoZone advised Bertolotti that the company intended to replace her as Regional HR Manager but would attempt to place her in another position at such time as she might return to work.

Bertolotti did not return to work on February 1, 2013.  Her physician indicated that he anticipated her new return-to-work date as March 28, 2013.  The doctor added certain permanent restrictions such as no exposure to theft detectors, power stations and no excessive or repetitive bending, twisting or stretching.  Plaintiff later contacted her supervisor to ask what position she would be offered when she could return to work.  She said she needed to know what the job would be to determine if she could perform it.  Her supervisor responded that he would not engage in discussions about accommodations until such time as Bertolotti was ready to return to work.

The next note that Bertolotti produced was on April 1, 2013, which added some other permanent restrictions which would remain in effect until May 24, 2013, but the doctor still did not provide a return-to-work date.

On April 11, 2013 AutoZone wrote to Bertolotti to advise that the company hired someone to replace her as the Regional HR Manager, adding that when she could return to work, the company would engage in the interactive process with her.

On May 24, 2013, Bertolotti’s doctor prepared another note stating that she could return to work without any restrictions effective August 21, 2013.  Bertolotti later sued under the New Jersey Law Against Discrimination.  After completion of discovery, AutoZone moved for summary judgment.

Plaintiff argued that there was direct evidence of discrimination by virtue of the December 12, 2012 letter from the company. That letter noted that plaintiff was not eligible for FMLA (having worked less than a year) and that she would be replaced as Regional HR Manager.  AutoZone countered that plaintiff was not qualified to perform the essential job functions because she had never been released to return to work.

The key document in the case was the December 12, 2012 letter.  Plaintiff argued that this letter proved disability discrimination. AutoZone argued that the letter did not really matter because the company did not actually terminate her position in December 2012 but waited until April 2013.  The Court disagreed:  “However, the crucial question is not how long it actually took Plaintiff to recover, or how long it took Defendants to hire a new employee, but what Defendants knew and expected of Plaintiff’s condition at the time they decided to remove her from the position of Regional HR Manager.”  Plaintiff’s supervisor testified that the decision was made in December 2012 to replace her because of the uncertainty of her medical condition.  This decision was made at a time when the company expected plaintiff to be able to return to work by February 1, 2013.

The Court acknowledged a key principle of New Jersey law, namely that an employer is not required to provide a disabled employee an indefinite leave of absence if such a request would pose an undue hardship on the employer.  “Here, however, Plaintiff was not seeking an indefinite leave of absence at the time Defendants decided to remove her as Regional HR Manager.  She had an anticipated return date of February 1, 2013.  At that time, Defendants had no reason to believe that Plaintiff would not be returning on February 1, 2013 as planned.”

The Court was also critical of AutoZone for not engaging in the interactive process in a timely manner.  The Court noted that in 2006 the New Jersey Administrative Code was amended to remove language that exempted employers from engaging in the interactive process only when disabled employees were “presently” able to perform their job duties.  It said, “The interactive process requires employers to make a good faith effort to seek accommodations.”

Once Plaintiff requested an accommodation, Defendants were required to do more than tell Plaintiff that she could not return to work without a release.  While defendants argue that they needed to know a date certain for recovery and a medical release before engaging in the interactive process, at least one court in this district has rejected a similar argument. . . . ‘[t]he law does not require that the employer know that an accommodation is possible before making reasonable efforts to identify an accommodation.  Instead, the law requires an interactive process, the purpose of which is to search out accommodations that might suffice, not to explore those obvious to the employer before the process even occurs.’

For New Jersey employers, this case is a warning shot on the issue of the need for employers to engage in the interactive dialogue once an employee requests accommodations and not to wait until the employee proves he or she can return to work.  The problem with the defense in this case centered on the December 12, 2012 letter which the Court noted came only after three weeks from the commencement of plaintiff’s leave of absence.  The Court clearly thought that the company may have jumped the gun so soon after the leave began, allowing a jury to decide whether the company indeed acted in a discriminatory manner.

This case reaffirms the rule that a request for an indefinite leave of absence is almost always unreasonable.  But what is a reasonable period of time?  There is no hard and fast rule but clearly, this Court is saying that three weeks did not seem reasonable in the context of these facts.  The Court felt that it was problematic for AutoZoner to make a decision to terminate an employee three weeks after commencement of leave, full knowing that the employee at that time expected to return to work in a couple of months.   One suspects that the outcome of this case would have been different if the employer had waited until April to advise that it was removing plaintiff from her position.  By that point in time, plaintiff still had not obtained a return to work date, and the company would have had a stronger argument.   The Court also questioned the company’s position that the HR position was so critical  that it had to replace plaintiff in December 2012.   If that were true, why did the company wait another four months to hire the replacement and how did the company manage for that four month period?  These questions clearly bothered the Court and raised questions for the jury to eventually address regarding the intent of the December 12, 2012 letter.

This case can be found at Bertolotti v. AutoZone, Inc., 32 AD Cases 435 (D. N.J. September 22, 2015).

Michael Sluga worked for Metamora Telephone Company as an Outside Plant Supervisor.  On July 27, 2011 he slipped on a trailer while at work and fell two feet to the ground, tearing his rotator cuff.  He tried to work with the injury but eventually in December he asked for a six month leave of absence to obtain surgery to the shoulder and then physical rehabilitation after surgery.  His surgery took place on February 15, 2012 in Chicago, Illinois, and he was placed on FMLA leave from February 15, 2012 to May 16, 2012.

Metamora promoted another employee, Dale Matson, to Outside Work Supervisor on May 20, 2012 after Sluga’s FMLA leave expired.  Matson had previously been under Sluga’s supervision, but he had been doing Sluga’s job while Sluga was on leave. Metamora also hired Don Adams on August 6, 2012 to work on the outside crew doing line installation, filling Matson’s position.

Sluga filed a workers’ compensation claim for his shoulder and settled it.  On July 27, 2012, the treating doctor sent a report to the workers’ compensation carrier stating that he would give an opinion on Sluga’s ability to return to work in four weeks.  Ultimately, Sluga’s doctor released him to work on August 30, 2012 with certain restrictions.  At that point Metamora terminated Sluga’s employment because the company had no open jobs for him to perform.

Sluga sued under the Americans with Disabilities Act, alleging that he was discriminated against on the basis of disability for failure to make reasonable accommodations.  Metamora countered that Sluga never really asked for any accommodation.  The Court said, “Even if Plaintiff had preserved his reasonable accommodation claim, it would fail based on the evidence presented.  When an employee seeks a reassignment to a vacant position as a reasonable accommodation, as Plaintiff does here, it is the employee’s burden to show that another position for which they are qualified existed.”  The Court added that Sluga never proved that there was an available job for him to perform.

Sluga also argued that the real reason that the company terminated him was that it did not want someone  with a disability to return to work. The Court disagreed, noting that Sluga never offered evidence that the company did not honestly believe that no positions were available in August 2012. The Court examined depositions and company affidavits given in the case by managers of Metamora and concluded that the company consistently explained that there just was no job available for Sluga when he was cleared to return to work.  The Court also affirmed the principle that a company does not have to bump one employee to accommodate another employee.

This case can be found at Sluga v. Metamora Tel. Co., 2015 AD Cases 181739 (C.D. Illinois April 27, 2015).

One of the challenges for employers is determining when a fitness-for-duty examination can be required and when it cannot be.  This issue sometimes flows from a workers’ compensation case following a long period of absence but also emerges in other situations unrelated to workers’ compensation. In Margaret Wright v. Illinois Department of Children and Family Services, 798 F.3d 513 (7^th Cir. 2015), the issue arose from conduct that the employer thought was grossly inadequate.

Margaret Wright worked as a caseworker at the Peoria Illinois Field Office for 25 years.  In 2005 she became the caseworker for CPL, a 10-year-old ward of the Department, who resided at the Rice Child and Family Center.  Following an incident at Rice, Dr. Costa interviewed CPL and determined that Wright had caused CPL to go into a frenzy because she told CPL that there were four foster families available to her in spite of the fact that CPL was not yet on the foster-care list due to her emotional problems.  CPL then refused to take her medications and said she no longer had to listen to anyone because she was leaving Rice.  CPL incited a riot in her unit during which children threw and broke furniture and attempted to attack the staff.

Dr. Costa concluded that Wright’s conduct posed a risk to CPL.  He issued a medical order preventing Wright from having further contact with CPL and the Department removed Wright from the case. Wright filed a grievance and issues arose regarding Wright’s conduct over the years.  Costa backed up his recommendations with a letter stating that he felt Wright’s mental health needed to be assessed.  Rather than issue a reprimand, the Department chose to require the mental status examination, asserting that Ms. Wright had a history of defiance to all levels of management; she had been verbally abusive in the past and had an abrasive manner with foster parents.   Wright refused to attend the fitness examination and filed a grievance.  Eventually, she agreed to go to the examination but refused to answer the doctor’s questions.  Instead she questioned the doctor on why an evaluation was ordered of her in the first place.

Wright was suspended and took vacation time. During the period of suspension, she contacted the State Employees’ Retirement System to determine the impact that quitting or being discharged would have on her pension.  She learned that she was eligible to retire with a reduced pension.  She then submitted her retirement effective September 30, 2007. After she retired, Wright sued her former employer for violating her rights under the ADA and for constructively discharging her.

After two lengthy trials, the case proceeded to the Seventh Circuit Court of Appeals.  The Court first referred to EEOC Guidance stating that an examination is job-related and consistent with business necessity when an employer has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition.  It said that fitness exams can be justified when an employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties, but it is not enough that an employee’s behavior is annoying or inefficient.

The Court decided against the Department in this case.  “In our view, the district court correctly determined that the evidence submitted at trial was insufficient to establish, as a matter of law, that requiring Ms. Wright to undergo a fitness-for-duty evaluation was consistent with business necessity.  The Court focused heavily on the different way in which Wright was treated from other employees who were required to attend fitness examinations.  In those other cases, the employees were placed on desk duty pending the examination.  In this case, when Wright was instructed on June 4, 2007 to attend a fitness examination, she was not placed on desk duty.  In fact, she was assigned a new case which turned out to be a sensitive one.  One department employee testified that it did seem contradictory to assign a new and sensitive case to someone whose mental status was being questioned.

The Court concluded, “The evidence presented at trial supports a finding that the Department did not believe that Ms. Wright posed a safety risk to the children with whom she worked and, instead, that it considered her competent to continue working with approximately two dozen children. Given this evidence, a reasonable jury could determine that Ms. Wright’s fitness-for-duty examination was not, in fact, consistent with business necessity.”

The case is important because it shows how courts will evaluate whether an employer has met the job-related and consistent with business necessity standard.  The court will look at how the employer treated the employee in question during the time of the fitness examination and in relation to how other employees have been treated when required to attend fitness examinations. Since the basis for the examination of Wright was an alleged direct threat of harm to others, it made no sense that Wright continued to handle her cases and got a new and sensitive case to work on. While Wright prevailed on this aspect of her case, she lost her constructive discharge claim because the Court believed that she retired in the end mainly because she found out that early retirement was available to her, not because of the conduct of the Department.