ADA

The Clayton County School District in Atlanta, Georgia employed Edith Hill as a bus driver.  During the school year 2009-2010 Hill was assigned a non-air-conditioned bus for special needs students.  The temperatures inside the bus rose above 100 degrees and Hill found she was experiencing serious difficulty in breathing.  She filed an “Employee Request for Reasonable Accommodation” on August 11, 2009 stating that extreme heat impaired her ability to breathe.

Hill attached two doctors’ notes, one from a pulmonologist who said she had an airway-related physical impairment that limited her breathing abilities.  If she were provided with an air-conditioned bus she could do the job, according to the pulmonologist.

On August 13, 2009, the School District placed Hill on unpaid leave while it considered her request.  On August 28, 2009, the School District sent Hill a letter denying her request because all air-conditioned buses had already been assigned to other drivers.  The letter did not mention that the District was in the process of obtaining more air-conditioned buses.

There was a dispute at trial as to whether the School District offered Hill one of these new air-conditioned buses.  Hill said it never happened; several employees of the School District said that the offer was made.  Hill remained out of work through 2009 and into early 2010. The School District terminated her employment on March 2, 2010.  Hill then sued under the ADA for discrimination.

The District Court ruled in favor of the School District and dismissed Hill’s law suit, but the Eleventh Circuit Court of Appeals reversed in favor of Hill on the disability discrimination issue.  The Court first noted that there was conflicting evidence on whether the School Board ever made an offer to Hill about using one of the new air-conditioned buses.  None of the School Board’s witnesses actually recalled making the offer to Hill.  The Court added:

Even assuming the School District did make such an offer, there is still a dispute as to whether making Hill wait two months was reasonable.  In its motion for summary judgment, the School District argued that providing an air-conditioned bus any earlier would have constituted an undue hardship, but does not provide sufficient evidence of what the hardship would be.  All the School District said was that it would have had to upset its seniority-sensitive bus-allocation process.

 The Court reviewed prior case law where employers had made employees wait a few months before making an offer of reasonable accommodation.  It said that in all of the prior cases, the employer paid the employee during the waiting period before a decision was made on the offer or allowed the employee to work during the waiting period.  The Court said, “Here, by contrast, two months was more than enough time for the School District to overcome any administrative hurdles in providing Hill with an air-conditioned bus.”

 What this means is that Hill has an opportunity to present her case before a jury.  The lesson in a case like this is that employers must act promptly when it comes to requests for reasonable accommodation.  In this case it was hard for the School Board to argue that Hill had no right to the accommodation request.  Hill had in years past driven an air-conditioned bus. The case also shows the importance of making a written offer of accommodation.  Throughout the hearing process the parties fought over the issue of whether an offer of accommodation had been made, even though this could have easily been resolved by documenting this in a written offer letter. The case can be found at Hill v. Clayton Sch. Dist., No.13-14951, (11^th Cir. 2015).

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Patrick Vasnaik worked for Providence Health & Services – Oregon as a security officer from 2006 to 2012.  His performance evaluations over the years fluctuated between requiring improvement to exceeding expectations.  However, he required several coachings over the years for not arriving on time to work.  In May 2010 he received a “documented coaching” after getting two tardies and three absences in a rolling 12-month period.

He also was coached for violating lost and found procedures:  once in 2010 he mistakenly took home a lost wallet which he put in his own pocket and forgot to log, and again in 2011 when he erroneously informed a woman that her lost necklace had been found.

One part of Vasnaik’s job was to park patients’ vehicles if the patient had to be taken into the hospital immediately.  In February 2011 he parked a patient’s vehicle in a designated disabled space without a permit, causing the patient to receive a $300 ticket. He was also coached about radio communications and emergency room standby procedures.

A recurring criticism of Vasnaik by his superiors was that he did not prioritize security calls or respond to them with urgency.  Once he did not answer an officer’s call because Vasnaik was eating lunch. His 2010 review noted that he only had one speed in which he performed every task and needed to augment his pace.  This criticism was noted again in 2011.

In May 2011 Vasnaik received a written warning when he lost track of a stand by patient he was guarding because he was using a computer and got distracted.  Some time thereafter he was written up for walking away from a marked patrol vehicle with the keys in the ignition and the engine running.

The final violation of Providence’s policy occurred on September 3, 2012 when he parked his personal vehicle in the West Parking Structure, which was reserved for patients and visitors only.  Wasnaik noted that he was running late that day, and that the lot was almost empty because it was Labor Day weekend. He later claimed that he parked there because of his work-related knee condition.  His employment was terminated on September 17, 2012.

During the last three years of his employment, Vasnaik had four workers’ compensation injuries.  The first was on July 16, 2009 when he injured his knee while working with a patient.  The second was June 2010 when he severely injured his right knee restraining a psychiatric patient. That injury led to knee surgery and a seven-month absence from work.  The third was on August 30, 2011 again involving the left knee, and the final injury occurred on September 2, 2012 when a psychiatric patient bit him on the left forearm.  This occurred two weeks before he was fired. Providence argued that it did not know about the last incident until after the company fired Wasnaik.

Vasnaik sued under the ADA and also the Oregon state law prohibiting retaliation for filing workers’ compensation injuries.  The Court noted that Vasnaik claimed that his knee injuries substantially limited his major life activities, specifically his mobility and quickness on his feet.  However, his only proof of this was an independent medical examination dated June 20, 2010 which occurred before his corrective surgery.  “Taking that evidence as true, it still does not establish the knee injuries substantially limited any of Vasnaik’s major life activity after his surgery and recovery,” the Court stated. His doctor’s note post-surgery gave him a full release with no restrictions. The Court also noted that “quickness on one’s feet” is nowhere listed as a major life activity under the ADA.

The Court took a different view, however, of his workers’ compensation retaliation claim.  Vasnaik’s argument was that Providence demonstrated increased scrutiny of him following his 2010 workers’ compensation claim.  He also argued that his firing followed closely on the heels of his fourth workers’ compensation claim when he was bitten by a patient.

The Court was not impressed with the increased scrutiny logic because there was ample evidence in the record that Providence was unsatisfied with Vasnaik’s work pace well before his workers’ compensation injuries.  However, the Court was concerned about the temporal proximity between the injury on September 2, 2012 and the termination on September 17, 2012.  Vasnaik said that he notified his employer around September 13, 2012 that he needed treatment for the biting incident.  That was one day before Providence made the decision to terminate his employment.  The Court considered Providence’s stated non-discriminatory reasons for firing Vasnaik and also considered Vasnaik’s assertion that the timing of his termination was extremely suspicious:

Although there is no dispute that Vasnaik had received a written warning, and that he admits the underlying incidents were true, the Court finds a reasonable juror could interpret the evidence Vasnaik has produced as indicative of a discriminatory intent.  Vasnaik testified that he felt ‘singled-out on this particular incident. . . and the supervisors are very . . . aware that a lot of people do park there.’” 

The Court also commented that most of Vasnaik’s annual reviews were fairly positive. The review from 2012, two months before his termination suggested Vasnaik was performing satisfactorily and was meeting expectations.  The Court concluded, “The close temporal proximity between Mullen’s positive review, Vasnaik’s injury, and his termination could lead a reasonable juror to conclude that Providence’s proffered reason for terminating him — that he parked in an essentially empty patient parking lot during the Labor Day weekend — was pretextual.”

For this reason the Court denied summary judgment to Providence on the workers’ compensation retaliation claim but granted summary judgment on the ADA claim to the employer.  The case shows the perils of terminating an employee within days of a reported workers’ compensation claim, particularly when written job evaluations are at best equivocal, if not essentially positive. The case can be found at Vasnaik v. Providence Health & Services – Oregon, 2015 U.S. Dist. LEXIS 61068 (D. Oregon, May 9, 2015).

Many employers have 100% healed policies that can redound to their detriment in court.  That was the situation in Kauffman v. Petersen Health Care, VII, LLC, 769 F.3d 958 (7^th Cir. 2014).

Debra Kauffman worked as one of two hairdressers at Mason Point Nursing Home in central Illinois.  On Mondays and Tuesdays, she would wheel residents to the nursing home’s beauty shop and then wheel them back after their hair was done.  On the other days of her four-day workweek, the residents would get themselves to the shop.  The average weight of the residents was 120 pounds, but some were much heavier.

In late December 2010, Kauffman suffered a uterine prolapse cystocele condition and had an operation to remove the uterus and reconstruct the bladder with a mesh lining installed in her abdomen.  She returned to work eight weeks after the surgery with a restriction against pushing more than 20 pounds.  Her doctor later raised that to 50 pounds.  The doctor did not know that Kauffman pushed residents in wheelchairs initially.  He thought she just did hairdressing work.  There was some confusion at trial as to whether her doctor completely removed the weight restrictions but the doctor continued to caution against pushing wheelchairs.

Kauffman asked the nursing home administrator whether she could be relieved of the need to push residents in wheelchairs, but the administrator declined, stating: “we just don’t allow people to work with restrictions; and you have a restriction on here . . .  As long as you’ve got the restriction we can’t employ you.”  He added that it would create a hardship if someone else had to transport the patients.

The district court judge ruled for the nursing home, but plaintiff appealed to the Seventh Circuit Court of Appeals.  The circuit court criticized the ruling below: “More important, it’s not true that the fact that a restriction is permanent automatically excuses the employer from making any attempt to accommodate it.  Otherwise, an amputee would never have a right to an accommodation, even if it involved nothing more costly to the employer than lowering the sink in the employees’ bathroom.”

The court also commented that the district court failed to appreciate the need  for an interactive dialogue.

A further problem with the district judge’s decision is his ignoring the requirement that when an employee asks for an accommodation because of a disability, ‘the employer must engage with the employee in an ‘interactive process’ to determine the appropriate accommodation under the circumstances.

The court noted that the EEOC does not approve 100% healed policies.  The opinion focused on the obligation of the employer to ask plaintiff how much of her time at work is spent pushing wheelchairs.  A concurring opinion in the case reminded the court that the employer’s judgment is given great weight on what is and is not an essential job function.  The concurring opinion suggested that on retrial, the trial court should focus on whether transporting residents is an essential job function. The concurring opinion asked whether there was any evidence that a battery-operated attendant-controlled wheelchair would allow someone with Kauffman’s condition to safely perform this function.

In reversing the district court the Seventh Circuit remanded the case for a new trial to determine what are the essential functions of Kauffman’s job as a hairdresser.  The case is helpful to practitioners because it illustrates many common scenarios that happen in the workplace:  employees are often returned to work with permanent restrictions, and some employers make the mistake of saying an employee cannot return to work with permanent restrictions while neglecting to engage in the interactive dialogue.

An employer should engage in a dialogue with the employee about his or her abilities and any requests for accommodations.  Ask the employee how he or she proposes to perform the essential functions of the job.  Avoid any comment such as “you cannot work here with restrictions,” or “we don’t allow permanent restrictions.”  These kinds of comments may land an employer in court.

Joe Wilkerson worked for Boomerang Tube, LLC  first as a general laborer and then as a mill operator. He injured his left hand on December 13, 2010 while operating the mill.  He returned to work on restricted duty on December 17, 2010.  On that evening at work, he reinjured his hand requiring another visit to the emergency room for stitches and antibiotics.  He returned to work on December 20, 2010.  There was a dispute whether he returned on light duty or full duty initially, but he did eventually return to full duty.

In April 2011 Wilkerson popped a ligament in his right hand and was placed on light duty.  He was scheduled for hand surgery on April 27, 2011.  In the meantime, he was offered light duty with instructions not to use his injured hand.  There was a good deal of dispute regarding the events of April 21, 2011, which is the date Wilkerson was terminated.  Wilkerson claimed that his supervisor was trying to make him do activities that were unsafe for him with one hand and Wilkerson allegedly kept asking if he could work in the store room.  He said his supervisor refused to allow this.

Boomerang disputed this version and said that even before the shift started, the company planned to have Wilkerson clean offices.  The supervisor claimed that he told Wilkerson to go get the cleaning supplies but fifteen minutes later Wilkerson had done nothing.  Wilkerson asked his supervisor if he could work in the storeroom.  The supervisor said that Wilkerson did not get to choose the type of light duty he would have to perform.  Wilkerson said he could not use a mop or a broom, so his supervisor told him to get some Simple Green and a box of rags to wipe down all the restroom and breakroom fixtures. According to the supervisor, he told Wilkerson he was being insubordinate, to which Wilkerson replied that he would leave and go home.  Wilkerson refused to do any wiping down work with one hand.  The supervisor called his superior, who then gave approval to fire Wilkerson for insubordination.

Wilkerson sued and alleged that Boomerang discriminated against him based on his disability.  He further contended that he could have performed the essential functions of his mill operator job with reasonable accommodations.  He suggested the following accommodations:

1. receiving assistance from his supervisor;
2. being assigned a trainee;
3. job restructuring or being permitted to wipe down walls and fixtures;
4. receiving a transfer to a vacant position in the storeroom; or
5. being allowed a short leave of absence.

The Court held that plaintiff failed to show that any of these accommodations was reasonable.  First, it held that it is unreasonable to require an employer to assign an existing employee to perform essential functions or to hire new employees for this purpose.  Second, it held that the company did not have to relieve Wilkerson of the essential functions of his mill operator job.  The purpose of reasonable accommodation is to allow the employee to perform his or her job.  Third, the Court said that there is no requirement that the company create a new job in the storeroom for Wilkerson or transfer him to a new job since he never proved that such a job was available and that he was qualified for that job. The Court also held that a request for a short leave of absence is not reasonable because it would not help Wilkerson perform the essential job functions.  (This aspect of the Court’s ruling is contrary to New Jersey law).

Since Wilkerson could not show that he could perform his job with any reasonable accommodation, the Court dismissed his law suit.  This case can be found at Wilkerson v. Boomerang Tube, LLC, 2014 U.S. Dist. LEXIS 146695 (E.D. Texas October 15, 2014).

Segundo Rojas worked 28 years for Acuity Brands Lighting, Inc.  In June 2011, Rojas was approved to leave work for a vacation to Ecuador set to last from June 27 to July 12, 2011.  However, he became ill in Ecuador from diverticulitis and did not return until September 12, 2011.

Rojas claimed that he was stricken with a painful bout of diverticulitis in Ecuador.  He did not contact the company because he did not speak English and did not have the appropriate fax number.  Instead, he faxed medical records to his daughter, instructing her to give the documents to his son, Washington, who worked at the ABL facility as well.  Washington was tasked with informing the company.

Washington claimed he spoke with a shop steward and union representative, Calvin Hughes, who assured him that everything was fine.  Rojas contended that this information was relayed to the Plant Manager and Director of Human Resources.  The company denied this.

When Rojas did not return to work following his vacation, the company sent a letter of termination three days later. Rojas argued in his law suit that he was discriminated against on the basis of disability.

The New Jersey Law Against Discrimination, the state equivalent of the ADA, has a very broad standard, namely proof of an infirmity caused by an illness that prevents the normal exercise of one’s bodily or mental functions.  Rojas established that he started treating for Diverticulitis in 1996 or 1998 and had continued gastrointestinal problems thereafter.  In fact, in April 2011, just a few months before he left for Ecuador, he had a CT scan of his abdomen and pelvis.  While in Ecuador, Rojas saw local physicians who diagnosed him with Colitis.  His Ecuadorian doctor recommended rest until September 1, 2011. Rojas alleged that he was so sick in Ecuador that he could not do anything without having pain and had to go to the bathroom frequently.

The Third Circuit found that there was sufficient evidence that Rojas suffered from an illness which caused an infirmity that prevented the normal exercise of his bodily functions.  Further, the court was satisfied that Rojas was performing his job duties at an acceptable level prior to his trip to Ecuador.  He worked there 28 years with good job ratings and had no absenteeism issues.

The most hotly disputed issue in this case was whether the company knew Rojas had a disability.  If it did not, the company could not be found to have discriminated based on disability.  Rojas produced testimony that certain company officials knew his condition through his son.  Clearly, plaintiff could show that the shop stewards were aware of his condition and were involved in employment decisions at the company.  Whether the shop stewards became aware before or after termination was not clear.  The Collective Bargaining Agreement directed employees to check with their shop steward about vacation days.  For these reasons, the court held that there was sufficient evidence of notice to avoid summary judgment by the company.

The company argued that Rojas was let go for failing to adhere to ABS’s no-call/no-show policy, and that this was a legitimate reason to terminate Rojas.  It cited the company handbook, but Rojas pointed out that he never received the handbook.

For all the reasons above, the Third Circuit ruled against the company in their motion for summary judgment.  It said that plaintiff produced enough evidence to allow the case to go to trial.  “Beyond the documentation that appears to support this particular instance of illness, there is evidence that  corroborates a history of illness and thus suggests that Plaintiff’s report of diverticulitis in Ecuador was genuine.  If so, the circumstances requiring Plaintiff’s absence were genuinely extenuating.”

This case may be found at Rojas v. Acuity Brands Lighting, Inc., 2014 U. S. Dist. LEXIS 87675 (3d. Cir. 2014).

When can an employer require a physical or mental fitness-for-duty examination? That was the issue in Coursey v. University of Maryland Eastern Shore, 2014 U.S. App. LEXIS 12407 (4^th Cir. 2014).

Over a period of years, beginning in 2004, students and faculty members lodged complaints about the conduct of Professor Leon Coursey.  The allegations concerned inappropriate sexual comments, unfairly favoring students,  and erratic and unprofessional behavior with colleagues. Some of his colleagues claimed that Dr. Coursey would disparage them and act overly aggressive with them in the presence of students.  Several students claimed that he was verbally abusive and went berserk on students in class.  Events came to a head on January 13, 2009 when Dr. James Heimdal, Chair of the Exercise Science Department, sent a memorandum to Coursey summarizing concerns that had been raised about him.

On February 3, 2009, the University removed Dr. Coursey from campus and suspended him from his position.  During the same months, the Dean of the University investigated the allegations and documented his findings and recommendations by memorandum.  He also interviewed Dr. Coursey, who said that people at the University were “out to get him.” The Dean recommended that a mental health evaluation take place.

For his part, Dr. Coursey lodged a grievance against the University arguing that he had been suspended without cause.  A faculty grievance board was convened and conducted a hearing.  The Grievance Board found on May 14, 2009 that the University had violated applicable procedures in suspending Dr. Coursey and recommended that he be reinstated to his regular duties.

University President Thelma Thompson had the ultimate authority to decide on reinstatement.  She recommended that Dr. Coursey first undergo a mental health evaluation.  She incorrectly asserted that this was the Grievance Board’s recommendation.  Dr. Coursey refused to undergo a mental evaluation and remained suspended on paid leave.  He filed a discrimination charge against the University with the EEOC.

On May 25, 2010, formal charges of termination were filed against Dr. Coursey for professional misconduct, incompetence, and insubordination.  As of August 1, 2010, he was suspended without pay.  A five-member faculty panel convened to review the charges lodged against Dr. Coursey.  The Panel heard testimony from 19 witnesses and issued a report recommending the termination of Dr. Coursey’s employment. Following his termination, Dr. Coursey sued under the Americans with Disabilities Act, contending that the University had no right to require a mental fitness examination and had regarded him improperly as having a disability.

The Fourth Circuit Court of Appeals noted that an employer has a right to require a fitness examination when such examination is shown to be job-related and consistent with business necessity.  It said:

A business necessity must be based on more than ‘mere expediency,’ and will be found to exist where the employer can ‘identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties.’

The Court further held that there was proof of business necessity in this case:

Dr. Coursey’s position as a full Professor at UMES required that he instruct, supervise, and interact with students and faculty in a professional and non-threatening manner.  Given the plethora of complaints about Coursey’s violent outbursts, erratic and inappropriate behavior, as well as his disregard for UMES policies, UMES has shown that it had valid concerns about Coursey’s ability to perform his duties.  A university is in the business of educating students; as such, it is essential that its faculty members be able to fulfill that role.

The Court also further rejected Dr. Coursey’s contention that the mere request for a fitness examination suggests that his employer regarded him as having a disability.  It said that a request for a medical examination, standing alone, is insufficient to prove that the employer regarded the employee as being disabled.

The case is very useful because it clarifies the standard under which employers have a right to require fitness-for-duty examinations.  The employer must have a legitimate, non-discriminatory reason to doubt the employee’s capacity to perform his or her duties under the business necessity provision.  The EEOC regulations allow fitness for duty examinations when there is a need to determine whether an employee is able to perform the essential job functions.  29 C.F. R. pt. 1630, App. 1630.14(c).

Grace Hwang worked as an assistant Professor at Kansas State University.  Before the fall term began, she found out she had cancer and needed treatment.  She requested a six month leave of absence, which Kansas State granted.  As the spring term approached, Hwang’s doctor indicated that she would need additional leave time.  She requested another extension through the end of spring and projected that she would be able to teach by summer term.  The University refused, stating that its policy had a six-month limit on disability-related leaves of absence.

Hwang brought suit under the Rehabilitation Act of 1973, which is interpreted in the same manner as the ADA.  The Court said the following:

It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.  After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.

The Court approved the practice of employers in granting leaves of absence as a reasonable accommodation, but it cautioned:

Still, it’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today.  Even if it were, it is difficult to conceive when requiring so much latitude form an employer might qualify as a reasonable accommodation.

Hwang argued that any inflexible leave policy which has a set period of time violates the law.  She relied on language from the EEOC guidance manual.  She argued that an employer must always modify a leave policy unless one of two enumerated conditions is met — unless an alternative accommodation would be effective or the requested leave modification would constitute  undue hardship.  The Court disagreed:  “In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive.”  The Court found other language in the EEOC Manual which seemed to endorse a six month period as reasonable.  It did acknowledge that if the inflexible leave policy is really a sham, and some people are granted more than six months, then there would be merit to a discrimination claim.  In this case, Hwang was not able to prove that the university’s six-month leave policy was not uniformly enforced.

This case can be found at Hwang v. Kansas State University, 753 F.3d 1159 (10^th Cir. 2014).  Readers should bear in mind that this is just one Circuit Court of Appeals decision, and employers should consult with counsel on the case law in their own Circuit before making a decision to enforce an inflexible leave policy.

Telecommuting is a trend that is rapidly growing in the United States, and telecommuting requests are also on the rise as a potential reasonable accommodation under the ADA.  A recent Sixth Circuit Court of Appeals case, EEOC v. Ford Motor Company, 2014 U.S. App. LEXIS 7502 (6^th Cir. 2014) illustrates how difficult it can be for an employer to oppose a request for telecommuting.

Jane Harris was hired in 2003 by Ford as a resale buyer, serving as an intermediary between steel suppliers and “stampers,” which are companies that use steel to produce parts for Ford.  Her job was to respond to emergency supply issues to ensure no gap in steel supply to parts manufacturers. The most important part of the job was group problem solving, requiring that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.

Harris suffered from IBS, an illness that caused her fecal incontinence.  Some days she could not drive to work or stand up from her desk without potentially soiling herself.  She took intermittent leave when severe symptoms occurred.  In 2005, her supervisor allowed her to work from home on a flex-time telecommuting schedule on a trial basis.  The company did not view the trial period as a success. She continued to work occasionally from home doing remote work, including on evenings and weekends.  However, Ford did not credit Harris with the time she spent working during non-“core” hours and marked the days she stayed home because of her illness as absences.  The company stressed that core business hours were important because that was the time when employees do team problem solving.

On occasion, Harris submitted a purchase order with incorrect pricing information because she could not immediately access the supplier on a weekend to obtain updated quotations. This caused problems with co-employees and suppliers.  Under Ford’s system of marking absences, Harris was absent in the first seven months of 2009 during core hours more than she was present.

In 2009, Harris requested that she be permitted to telecommute on an as-needed basis as a reasonable accommodation.  Harris felt that she could get most of her work done by computer or telephone.  Ford had a telecommuting policy but not for all jobs. Harris’s supervisors did not feel that her position was suitable to telecommuting and denied the request.  Instead, the company suggested that it could move her cubicle closer to the restroom or she could seek an alternative position within Ford that would be more suitable for telecommuting.

Harris filed a charge of discrimination with the EEOC.  Eventually Ford terminated Harris for poor performance.  In 2011, the EEOC filed a complaint alleging that Ford violated the ADA by failing to accommodate Harris’s disability.  The district court followed precedent that indicated a court should not second guess the employer’s assessment of the essential functions of the job and ruled against Harris.  The Sixth Circuit Court of Appeals  reversed.

The Circuit Court noted that Ford believed physical attendance at the workplace was critical to the group dynamic of the resale-buyer team.  The Court did not defer to Ford’s description of the essential job functions:

While Ford has provided substantial evidence of its business judgment and the experience of other resale buyers, the EEOC has also offered evidence that casts doubt on the importance of face-to-face interactions at Ford.  Harris’s own experience over several years as a resale buyer indicates that in-person interaction may not be as important as Ford describes: Even when Harris was physically present at Ford facilities, the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.

The Court noted that Ford did allow other resale buyers to telecommute, albeit on a more limited basis than the request Harris was making.  The Court moved away from a previous position in prior cases that telecommuting is not a reasonable accommodation, saying that telecommuting may be reasonable when someone can perform all the essential functions at home.

Ford also argued that it made two alternative accommodations to Harris, as noted above, but Harris rejected those accommodations.  The Court said that moving her cubicle closer to the restroom would not relieve Harris of the “humiliation of soiling herself on a regular basis in front of her workers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact.”   It said that allowing her to apply for another job was not adequate because there was no guaranty that such a position would be available.

The Court said that because the EEOC provided evidence that Harris was qualified for her position with a reasonable telecommuting accommodation, the burden shifted to Ford to show an undue burden on the company.  “Although setting up a home workstation for Harris might entail some cost, considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute.”

The case shows that telecommuting is inevitably going to be viewed as a reasonable accommodation, no matter that earlier cases on the ADA did not find it to be.  Employers that have telecommuting policies will be hard-pressed to deny requests for accommodation where there is evidence that the employee can perform the essential job functions at home.

The ADA Amendments Act has substantially broadened coverage under the law.  An example comes in Gogos v. AMS Mechanical Systems, Inc., 737 F.3d 1170 (7^th Cir. 2013).  Mr. Gogos worked as a pipe welder and had been taking medication to reduce his elevated blood pressure for the past eight years.  He commenced employment with the defendant in December 2012 as a welder.  One month later his blood pressure spiked to a very high level, causing some intermittent vision loss.

After reporting to work on January 30, 2013, Gogos noticed that his right eye was red.  He sought and received permission to obtain immediate medical treatment for his blood pressure and ocular conditions.  As he left the work site to go for treatment, he saw his general foreman and said he was headed to the hospital for health reasons.  The foreman immediately fired him.

Gogos sued under the ADA, but his case was dismissed by the district court because the court felt that his medical conditions were transitory.  The Seventh Circuit Court of Appeals reviewed the ADA Amendments Act and observed: “Under the 2008 amendments, a person with an impairment that substantially limits a major life activity, or a record of one, is disabled, even if the impairment is ‘transitory and minor’ (defined as lasting six months or less).   The court noted that the “transitory and minor” language only applies if the law suit is premised on being regarded as having an impairment. That was not the basis of Mr. Gogos’s law suit.  The court also noted that impairments that are episodic or in remission constitute a disability if they substantially limit a major life activity when active.

Based on these provisions, Gogos’s episode of a blood-pressure spike and vision loss are covered disabilities.  He attributes both problems to his longstanding blood-pressure condition, and the ADA’s implementing regulation lists hypertension as an example of an ‘impairment that may be episodic.’  Under the 2008 amendments, ‘the fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity.’

The court said that what was relevant was whether Gogos’s higher-than-usual blood pressure and vision loss substantially impaired a major life activity when they occurred.  The court accepted Gogos’s argument that he had impairment of two major life activities: circulatory function and eyesight.  The court also said that the chronic blood-pressure condition could also qualify as a disability because mitigating measures, such as medication that controls the condition, cannot be considered when assessing disability.  The condition must be considered without the benefit of medication in determining whether the condition is substantially limiting.  For these reasons the court vacated the dismissal of Gogos’s case.

The lesson here is to appreciate that coverage under the ADA has been greatly expanded.  In the aftermath of the ADA Amendments Act, it will be extremely difficult for an employer to prevail in ADA litigation by arguing that there is no covered disability.

A well-done post-offer medical examination requires great skill and expertise.  These elements were lacking when Adam LaFata applied for a job as Plant Engineer, essentially a custodial position, with the Dearborn Heights School District. One critical fact is that LaFata had been doing this kind of work for 10 years for the Lincoln Park Community Center, maintaining the inside and outside of the building, HVAC, minor plumbing and electrical work, maintaining refrigeration equipment for the ice rink, operating the Zamboni, setting up and tearing down for shows, regularly using ladders and carrying weights more than 40 pounds.

The school’s District Director of Operations interviewed LaFata on August 26, 2010 and August 30, 2010.  He informed LaFata that the job required physical labor such as climbing ladders and lifting more than 55 pounds.  The school gave LaFata a conditional offer provided he passed the school physical.

The post-offer medical examination was performed by Dr. Joel Perlson.  He had concerns about LaFata because he “climbed onto the table very slowly, moving one limb at a time, balancing himself as he went along, slowly turning around and then sitting down on the table.”  Dr. Perlson then stepped out of the room and asked a staff person to get a job description from the school.  Dr. Perlson noted muscle atrophy in the legs, an inability to walk on heels or toes, and noted that LaFata wore leg braces at times and had weakness in his hands.  Dr. Perlson found that LaFata had Charcot Marie Tooth syndrome, a genetic disorder which causes muscle deterioration and gradual loss of strength.

Interestingly, Dr. Perlson did NOT ask any questions about LaFata’s current job duties.  Dr. Perlson gave a note for LaFata to take to his family doctor, who agreed that LaFata had Charcot Marie Tooth syndrome.  However, she felt that LaFata could perform all his job duties and was suitable for the job.

Later, Dr. Perlson received the job description, which was vague and not effort specific, and Dr. Perlson concluded that LaFata could only do ground work and was restricted from climbing ladders and lifting more than 40 pounds.  Dr. Perlson was later deposed in the ensuing ADA law suit and gave conflicting testimony that he thought LaFata could then do the job but would later in the future have problems in the job.

When the school received the recommended restrictions from Dr. Perlson, it decided to withdraw the job offer.  The school was aware of the report from LaFata’s family doctor indicating that he could perform the job duties but they focused on the weight restriction and the ladder work, concluding that they could not hire LaFata.  They did not actually read Dr. Perlson’s full report or speak with Dr. Perlson. The Assistant Superintendent indicated that she did not think she had any right to contradict what Dr. Perlson wrote.

The school never considered any possible reasonable accommodation and never engaged in any interactive dialogue with the applicant.  Essentially, the school argued that it had a right to rely on the opinion of Dr. Perlson.

The federal court rejected this approach. It said,  “First, the School District lacked sufficient information to assess whether Dr. Perlson’s opinion was reasonable.  Second, even if Dr. Perlson’s recommended restrictions were reasonable, neither he nor the School District engaged in any analysis to determine whether a reasonable accommodation would enable Plaintiff to perform the essential functions of the job.”

The school argued that LaFata failed to make a request for reasonable accommodation.  Normally that is required, but the court said not in a case where no formal job had been extended and the applicant was still in a post-offer stage.

The Court was critical of the school for neither insisting on seeing Dr. Perlson’s entire report nor speaking with him, and the court noted that Dr. Perlson was unaware that LaFata had been doing the very same job with another district for years. It said, “Dr. Perlson was not Plaintiff’s treating physician and he based his recommendations on nothing more than a cursory physical examination of Plaintiff.”   The court added, “Moreover, there was evidence available and known to the School District that contradicted Dr. Perlson’s recommendations that it did not consider.  First, Plaintiff was performing the very functions at his current position that Dr. Perlson concluded he could not do.”

Most damaging to the school’s position was this statement: “First it is undisputed fact that neither Dr. Perlson nor the School District engaged in any analysis to determine whether reasonable accommodations were available that could enable Plaintiff to perform the essential functions of the position despite his disability and purported physical restrictions.  Second is the School District’s failure to rebut Plaintiff’s showing that he could perform those functions without or, if necessary, with reasonable accommodations.”

The Court awarded summary judgment to LaFata on his ADA suit against the District.

The case sets down a number of key rules when doing post-offer medical examinations:

• The employer does the hiring, not the examining physician.
• Understanding the reasoning of the examining physician is important and requires review of the medical report and perhaps a phone conference with the physician.
• When disability is the potential reason for restrictions, the employer has the duty to engage in interactive dialogue to discuss possible reasonable accommodations.
• In cases where it is unclear whether someone can lift 40 pounds as opposed to 50 pounds, a functional capacity evaluation is a useful tool.

This case may be found at LaFata v. Dearborn Heights School District No. 7, 2013 U.S. Dist. LEXIS 173731 (E.D.Mich.S.D. 2013).