Ain’t nothing like it used to be,” wailed the rock band Steppenwolf a few decades ago, and that observation applies as well to the definition of “substantial limitation” under the ADA.  In a case of first impression, the United States Court of Appeals for the Fourth Circuit held that the “substantial limitation” on a major life activity needed to meet the ADA’s definition of “disability” need not be as substantial as it used to be.   Summers v. Altarum Institute, Corporation (4th Cir. January 23, 2014).

The decision comes as no surprise. In 2002, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court held that the terms ‘substantially’ and ‘major’ “need to be interpreted strictly to create a demanding standard for qualifying as disabled” under the ADA. In 2008, Congress passed the ADA Amendments Act, specifically rejecting this “demanding standard” in favor of “broad coverage” and telling courts to find that individuals have a disability “to the maximum extent” permitted by the law. Due to Summers, temporary impairments may be sufficiently “substantially limiting” to support a finding that the individual has a disability.

In Summers, due to an accident, the plaintiff had fractured bones and torn tendons in his legs and knees. His doctors told him that with surgery and physical therapy, he would be unable to walk normally for at least seven months; without surgery and PT, he would be unable to walk normally for at least a year. He had surgery. Six weeks after the plaintiff’s accident, his employer terminated his employment.

In dismissing the plaintiff’s ADA claim, the district court had said that a “temporary condition, even up to a year” was not a substantial enough limitation. In reversing that decision, the Fourth Circuit cited EEOC regulations stating that the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” if they are “sufficiently severe.”  The court concluded that being unable to walk for seven months, and even longer without surgery, was sufficiently severe to be “substantially limiting.”

A correctional officer whose doctor restricted her from working the graveyard shift (6 p.m. to 6 a.m.) may pursue her ADA failure to accommodate and constructive discharge claims, according to a federal court in New Mexico. Maes v. City of Espanola (D.N.M. January 13, 2014).

Plaintiff’s doctor wrote that plaintiff’s working the graveyard shift “caused her a number of medical problems including severe insomnia, migraine headaches, and much worsened depression.” Her doctor advised against plaintiff’s working any “sustained” period of graveyard shifts, according to the court. A later doctor’s note said that she would “not tolerate full/graveyard type shift work.”

In addition to rotating 12 hours shifts, correctional officers were also assigned to standby for the shift they were not scheduled to work, on a rotating basis, in weekly increments, to fill in for absences. When the plaintiff was scheduled for a week of graveyard shift standby, she sought to be excused. Her supervisor told her she could line up a replacement but that the standby schedule was her responsibility. While on standby, the plaintiff was called in, reported in, but left before the end of the shift. The next day, her supervisor told her that her leaving early, in effect, was a resignation. While the plaintiff disagreed, the next day, she resigned, stating in her letter that “the stress and, what I consider mental abuse…leaves me no other opton…”

The court denied the employer’s motion for summary judgment on these ADA claims, holding that a jury should decide whether defendants failed to reasonably accommodate plaintiff’s medical condition and whether the circumstances of her discharge were sufficient to be a constructive discharge.

This decision does not discuss a few issues that seem to warrant discussing. The doctor’s note said the plaintiff could not work a “sustained period of graveyard shifts” or “full/graveyard type shift work.” Is working graveyard on standby only working a “sustained” or “full” graveyard shift? A second issue not discussed is whether working the graveyard shift, or rotating shifts, or standby shifts is an essential function of the correction officer position. We have posted about other decisions that addressed that issue here and here. If it were an essential function, the issue would be whether there was an accommodation the employer could provide that would enable to plaintiff to fulfill that function.

A nursing home has settled claims of systemic violations of the Genetic Information Nondiscrimination Act (GINA) brought by the EEOC by agreeing to pay $370,000, the EEOC has announced.  In EEOC v. Founders Pavilion, Inc. (W.D.N.Y., filed May 16, 2013), the EEOC had alleged that the employer violated GINA when the doctor to whom it sent applicants for post-offer/pre-employment medical exams asked them for family medical history. About $110,400 will be distributed to the 138 individuals who were asked for their genetic information. The remainder of the settlement will go to five individuals who claimed they were not hired because they were pregnant or due to perceived disabilities.

The snare that caught this employer awaits many unwary employers and is stuck in the crevice between the medical and employment worlds. The standard practice for treating physicians is to ask patients their family medical history. However, when employers use doctors to provide post-offer/pre-employment physicals or fitness for duty exams, employers must instruct the doctors not to request genetic information, including family medical history. In these circumstances, the doctors are not “treating” a patient, but are evaluating the applicant’s current ability to perform a job and collecting information about their current medical status.

The scope of these employment exams is limited by a variety of employment statutes and regulations, including GINA. The challenge for doctors is to change perspectives from the “treating physician,” where family medical history may be vital, to the occupational physician, where, the EEOC says, family medical history is always irrelevant.

Every time an employer requests a medical exam of or medical documentation from an applicant or employee (including FMLA certification forms), the employer should include a GINA Safe Harbor notice specifically directing the doctor not to ask for genetic information, including family medical history, and not to disclose genetic information that might already be in the doctor’s file (if the doctor is the employee’s treating physician).

 

The plaintiff drove an excavator, which had an automatic transmission. The plaintiff moved the excavator from one jobsite to another by hauling it on a trailer behind a semi-truck, which had a manual transmission. While other employees sometimes hauled the excavator, the plaintiff moved it about 70% of the time. Due to a motorcycle accident, the plaintiff had his left leg amputated. When he sought to return to work, his employer terminated him because he was unable to drive the semi-truck to transport the excavator, which the employer considered to be an essential function of the position. The plaintiff sued under the ADA.

The Sixth Circuit Court of Appeals reversed the district court’s holding that driving the semi-truck was an essential function of the excavator’s job. The appeals court held that a jury should decide whether driving the semi was an essential function because some facts suggested that it was not. These included the transporting the excavator was not on the excavator’s job description but was on that of the truck/tractor position; the excavator’s job description did not list driving a manual transmission vehicle as an essential function; and since the excavator remained at the work site “90% of the time,” hauling it was a “marginal time investment” for the excavator operator. The appeals court also noted that the employer did not seek volunteers to transport the excavator from the truck driver or other excavator operators, suggesting impliedly that the employer should have done so. The employer’s reference in the job description to “other duties as assigned” was not sufficient to establish that it was an essential function, the court held. Henschel v. Claire County Road Commission (6th Cir. December 13, 2013).

 

An employer’s losing a summary judgment motion in an employment case is one thing; for a plaintiff to win summary judgment is quite another. Such was the case in Lafata v. Dearborn Heights School District No. 7 (E.D. MI December 11, 2013), where a court rejected an employer’s defense that it “had a right to rely on” its doctor’s opinion concerning an applicant’s medical restrictions to determine that the applicant could not perform some of the essential functions of the job.

During the post-offer physical, the district’s doctor diagnosed plaintiff with a genetic disorder that causes muscle deterioration and gradual loss of strength. Both the applicant and his personal doctor said that he had sufficient strength to do the job. In his report, the employer’s doctor recommended that plaintiff only do “ground level” work and recommended a lifting restriction. The district withdrew the offer of employment.

In rejecting the employer’s “right to rely” argument, the court said neither the doctor nor the district considered that the plaintiff was then, and had been for ten years, a building superintendent; or the assertion by plaintiff and his doctor that he had sufficient strength to do the job; or whether the employer could provide a reasonable accommodation that would enable him to do the job.

The district “had a duty to review [its doctor’s] report to assure itself that his examination and analysis were thorough and/or reasonable,” according to the court. Since it did not do so, it had “no basis to evaluate whether the restrictions were reasonably based on plaintiff’s actual physical limitations,” the court concluded.

Since there was no evidence to support the district’s position that the applicant could not do the job, with or without accommodation, the court granted summary judgment to the plaintiff.

 

The EEOC has sued a hospital that granted an employee two months of medical leave and extended it for an additional four months, but denied her further medical leave and terminated her because her continued absence would cause it an undue hardship. EEOC v. Children’s Hospital and Research Center, Case No.”CV 13-5715 (N.D. CA. filed December 11, 2013).

After six months of leave, on July 10, 2012, the Charging Party provided a doctor’s note stating she could return to work without restrictions on September 1, 2012. According to the Complaint, the hospital denied the Charging Party additional leave and “fired her based on its belief that she would not be able to return to work on September 1, 2012 and that [her] continued absence would cause it undue business hardship.”

While the Complaint does not specifically allege that the hospital should have granted more leave from her regular position as an accommodation, it claims that the hospital “did not explore any alternative accommodations…, such as reassigning [Charging Party] her to several vacant Office Associate positions elsewhere in the hospital, for which it advertised in August and filled sometime in the fall of 2012.” The EEOC seems to be suggesting that even if it were an undue hardship to provide more leave to the Charging Party in her regular position, prior to terminating her, her employer should have considered reassigning her to a position that would become available before the Charging Party’s return to work date.

In its 2002 ADA Enforcement Guidance on Reasonable Accommodation and Undue Hardship, the EEOC said that a position is vacant if it is available when the employee asks for reasonable accommodation, or one that the employer knows “will become available within a reasonable amount of time.” In one example, the Guidance states that waiting for a position to become available for four weeks was a “reasonable amount of time” while waiting for a vacancy for six months was not.

 

An employee who claimed her supervisor “dressed [her] down” for 45 minutes, telling her during the tirade that she was unqualified for her job “because bipolar people are deficient, flighty, dishonest and untrustworthy,” cannot establish her constructive discharge claim, according to the Eleventh Circuit of the U.S. Court of Appeals. Menzie v. Ann Taylor Retail Inc. (11th Cir. December 11, 2013).

During the exchange, the supervisor told plaintiff she could either accept a demotion or remain in her position, where she would very likely not succeed. Two days later, the plaintiff resigned.

For a constructive discharge claim, a plaintiff must establish that working conditions were so intolerable that a reasonable person in her position would have been compelled to resign. The plaintiff pointed to the 45 minute tirade to support her constructive discharge claim. The court rejected her claim and affirmed summary judgment for the employer, noting that a single isolated instance of employment discrimination is generally insufficient to support such a claim. The court cited another court’s observation that “an employee is not guaranteed a working environment free of stress.”

For procedural reasons, the court rejected the plaintiff’s claim that she was subjected to a hostile work environment based on her disability. In doing so, the court posited that such a claim does not exist under the ADA, stating: “[W]e have never held in a published opinion that a hostile work environment claim is available under the ADA. We do not decide that issue today because [the plaintiff] never asserted such a claim.” Since other courts have recognized such a claim, employers must check whether such a claim exists where the case is pending.

A plaintiff’s failure to accommodate claim under the ADA may proceed even though the plaintiff did not follow the employer’s accommodation request procedures, according to a Virginia federal district court. Martin v. Yokohama Tire Corporation (W.D.Va. November 12, 2013).

The plaintiff, a diabetic, alleged that his requests for time off for doctors’ appointments and when he was ill were denied. The employer denied that the plaintiff ever requested an accommodation, noting that the employee handbook requires anyone requesting an accommodation to go to Human Resources and the plaintiff admitted he did not go to Human Resources.

The court rejected the employer’s argument, noting that the fact that the employer had unilaterally changed plaintiff’s shift to a weekend shift so he could attend doctor’s appointments was sufficient evidence for a jury to find that the employer knew of and had acknowledged the plaintiff’s need for some accommodation. The court also noted that a jury could find that this unilaterally-imposed accommodation was not effective because there was evidence that it actually made the plaintiff’s condition worse.

This case establishes that an employer cannot rely on an employee’s failure to follow its accommodation request procedures as a reason to deny the accommodation if it knew of the need for an accommodation through other means. Further, although an employer need not grant the employee’s preferred accommodation, unilaterally imposed accommodations may not suffice.

A former employee’s ADA claim that he was terminated unlawfully pursuant to a “Maximum Medical Leave of Absence Termination Policy” –an “inflexible blanket policy,” he called it –-was rejected because he was unable to return to his job at the end of his leave, did not request a transfer to a job he could perform, and did not apply for a leave extension before his leave had expired. Cash v. Siegel-Robert, Inc. (6th Cir. December 3, 2013). The court affirmed summary judgment for the employer.

The employer’s leave policy said that an employee who is unable to perform the essential functions of his position, with or without accommodation, or another position the employer may offer, would be “automatically terminated” after six months of leave. The policy added that an employee may request an extension of leave but that such request must be made before termination would be effective. With an extension request, the employee must provide medical documentation ”demonstrating that the employee will be able to return to work, with or without reasonable accommodation, on a date certain within a reasonable time after termination would otherwise take effect.”

When the plaintiff brought the company his return to work paperwork, the company told him it had terminated him three days earlier, when his six month leave had expired.

After the lawsuit was filed, the employer adopted a new policy of sending a certified letter to an employee who is nearing the end of a medical leave of absence, noting the date the leave will expire and instructions for requesting an extension if needed. The company argued that evidence of this “subsequent remedial measure” should not be admissible. Since the court granted summary judgment to the employer, it did not address this issue.

Even if kidney stones were a disability under the ADA, an employer did not violate the ADA by not providing the plaintiff’s requested accommodations of “flexibility in her schedule” and a reduced work load for an indefinite period of time, according to a federal district court in Utah. Whitmeyer v. R & O Construction, Inc. (C.D. UT, October 23, 2013).

In finding these requests to be unreasonable, the court quoted the oft-cited axiom that “a regular and reliable level of attendance is a necessary element of most jobs.” Granting the plaintiff the requested schedule flexibility would not “guarantee” regular or reliable attendance, the court said.

The court dismissed the plaintiff’s request for a lighter workload with similar dispatch. This request was unreasonable because an employer need not remove essential functions of a position and the lighter work load “would shift her work onto other employees for an indefinite period of time.” We have posted previously about the importance of evaluating the impact of an employee’s requested accommodation on other employees.

As for whether having kidney stones is a disability, the court observed that one court has held that it was not while another held that having kidney stones met “the minimum threshold” necessary to survive motion to dismiss.