Accommodating Two Employees With Similar Disabilities, Quirky Question # 81

Quirky Question # 81:

I am in charge of staffing at a medium-sized company that runs several centers in the metro area offering emergency day-care services on a daily fee basis for children from 6 months to 6 years of age.  Because we do not know the mix of children who will be brought to our centers on any particular day, we expect every child-care provider we hire to be able to push strollers, lift and carry the smaller children, and play games with the older ones.  Therefore, as part of the job description, we require that all employees be able to lift at least 30 pounds.

About 9 months ago, one of our employees was in a car accident and suffered a serious injury to her shoulder.  She came back to work with a doctor’s note imposing a temporary lifting restriction of 10 pounds.   She’s great with kids and well-liked by her co-workers, so we didn’t want to let her go just because she got injured.  Both we and the employee also thought that she would quickly recover, so we made arrangements to keep her around.  It wasn’t easy, but we arranged it with the other child-care providers in her center so that she wouldn’t have to work with the youngest children.  Her interactions with the older ones were limited to comply with the lifting restriction, too.

After about 12 weeks with this arrangement, the employee brought in another doctor’s note indicating that the shoulder had not responded to physical therapy and that the lifting restriction was indefinite.  The employee further confided to me that the only other option was surgery, but she was afraid to have the surgery, there was no guarantee it would work, and she didn’t think she could afford the extra medical expenses.  Because the job duty arrangement, while not ideal, seemed to be working, we have continued to employ this employee with her lifting restriction for another 6 months.

Just after New Year’s, another one of our child-care providers at the same center suffered a shoulder injury, falling off a ladder while taking down Christmas lights.  He took last month off, and then stopped by the office this week with a doctor’s note that detailed an identical 10-pound lifting restriction.  At this point, the doctor is not sure if the injury is permanent.

Our staff is already stretched thin.  Scheduling is tight.  Changing yet another employee’s job description would force us to hire other employees to work with the small children that the work-restricted employees can no longer supervise.  There is simply no possible way we can afford to have two employees who are unable to work with the small children.  Yet this second employee obviously knows of the arrangements we made for the first, and I’m sure he is going to ask us to do the same for him.

I know the ADA requires us to make reasonable accommodations for our otherwise-qualified employees.  My question is this:  by accommodating the first employee, did we acknowledge that the accommodation was reasonable?  Can we be held to that standard for this newly-disabled employee?  Do we face discrimination lawsuits if we don’t accommodate both of them in the same way?  We absolutely can’t do that, so are we better off just letting them both go at this point?

Dorsey’s Analysis:

That is certainly an unenviable position. The choice between losing two valued employees, or retaining just one of them and defending your favoritism in court is extremely difficult. This situation also raises countless issues about ADA coverage, the definition of a disability, and what it means for an accommodation to be reasonable. The matter is further complicated by the recently enacted amendments to the ADA, which promote a much broader definition of “covered disability.” I believe, however, that there is a way to resolve this situation that meets your business needs while still giving you a defensible position in any subsequent litigation.

I note in passing that, at least with the second employee, you need to be aware of possible FMLA issues. It doesn’t sound as if the employee is asking for any sort of leave or reduced schedule in connection with his injury, and it is also unclear whether this shoulder injury would qualify as a serious health condition under the FMLA. But any time you are confronted with an employee illness or injury affecting job performance, it is wise to first rule out any FMLA obligations.

The next question to ask in such situation is whether the ADA (or a similar state law) is implicated. Usually this means first asking whether the employee has a “disability.” Not all physical impairments, of course, qualify for protection under the ADA. To be a “disability,” an impairment must substantially limit one or more major life activities. A temporary impairment does not count as a disability. If the injury to this employee’s shoulder heals or is likely to heal, he is due no protection under the ADA. Even if his lifting restriction is permanent, he still faces a long line of unfriendly precedent. While the ADA specifically includes “lifting” as an example of a major life activity, courts have been reluctant to equate lifting restrictions with disability status. Brunko v. Mercy Hospital, 260 F.3d 939, 941 (8th Cir. 2001) (40-pound lifting restriction was not a disability); Gutridge v. Clure, 153 F.3d 898, 901(8th Cir. 1998) (45-pound restriction was not a disability); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997) (25-pound restriction was not a disability). In all of those cases, an employee was restricted from performing some jobs, but able to perform a wide variety of other ones.

The situation here is potentially different; however, given the severity of the lifting restriction. While most daily activities do not require the lifting of 40 or 45 pounds, 10 pounds is so low that the employee has a better argument that, if thought to be a long-term condition, he is disabled. Still, one could think of any number of office, retail, or other customer service positions in which the employee could work even with his lifting restriction, even if he can no longer work for a company that provides emergency day care to children of all ages. An impairment that renders a person unable to perform one specific job is not a disability. Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311, 1319 (8th Cir. 1996). Without proof of more serious limitations to his daily life or ability to find employment, he will likely have a hard time proving that he is disabled.

Admittedly, however, there is some uncertainty here. Last September, Congress amended the ADA to loosen the definition of disability. The amendment specifically repudiated the cases imposing a strict standard on the definition of disability. According to Congress, the new focus of ADA cases is supposed to be on whether employers have complied with their accommodation obligations. The definition of disability, however, remains unchanged. Even in light of this new directive, it is not clear that a court would find a 10-pound lifting restriction on one arm to be a substantial limitation of any major life activity.

Even if a court decided that this employee is disabled, it is unlikely that he would be able to demonstrate that his requested accommodation would be effective. If each employee could care for only a segment of the children, your business model would not work. On days when the mix of ages was distributed evenly, there would be no problems. But on those days when the range in ages skews old or young, some of the employees would be responsible for every child, and some employees would do no work at all. This would be neither safe nor efficient.

The fact that you have a written job description emphasizing the need to be able to care for children of all ages and to lift 30 pounds makes your case even stronger. When a function is this important, and when removing the function would fundamentally alter the nature of the position, the function is essential to the job. 29 C.F.R. §1630.2(n)(3).

Unfortunately, this employee can no longer lift more than ten pounds. The only suggested way to accommodate his lifting restriction in his current child care position is to allow him to abstain from working with some portion of the children. But by only being available to care for some of the children, he is no longer performing the central, essential function of the job. Employers are not required to alter an existing position by removing or changing the job’s essential functions.

But what about the fact that you have offered such an “accommodation” to the first employee? Have you conceded that the accommodation is reasonable? (Again using the term “accommodation” assumes that the first employee has a disability – it very well may be that neither have a covered disability under the ADA). The answer is no, for two overlapping reasons. First, the ADA requires that courts consider every disability claim on a case-by-case basis. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999). Even if one accommodation is reasonable, a new set of circumstances (including, presumably, the existence of the first accommodation) could still make another, similar accommodation unreasonable.

Second, the fact that an employer offered a particular accommodation once is not conclusive proof of the accommodation’s reasonableness. See Myers v. Hose, 50 F.3d 278, 285 (4th Cir. 1995) (holding that an employer did not violate ADA by refusing to extend accommodations to the plaintiff even though those accommodations were offered to other employees). To adopt such a rigid standard, in fact, would create a disincentive for employers to offer the fullest possible accommodation to an employee, for fear that its efforts may actually be “used against it” with regard to a later employee. Id.

In Smith v. Ameritech, for example, the Sixth Circuit rejected a claim by a plaintiff that his employer failed to accommodate his chronic back pain by reassigning him to a different position and allowing him to work from home. The court concluded that although the employer had made similar arrangements for another employee with multiple sclerosis, it would be inappropriate to “ratchet up liability” on employers who offer accommodations “as a matter of good faith” even though no particular set of accommodations is required by the ADA.. 129 F.3d 857, 866-68 (6th Cir. 1997).

In light of the foregoing, the most important step for you to take at this point is to make sure you have engaged in a dialogue with this second employee. The EEOC calls this the “interactive process.” When an employee tells an employer about a disability, the employer must undertake reasonable efforts to find an accommodation that is appropriate with regard to both the essential functions of the position and the individual limitations of the employee. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951-54 (8th Cir. 1999). One final option to consider is whether there are any open positions in your organization that do not require lifting of more than 10 pounds, for which your second employee would be otherwise qualified. If there really are no accommodations available that do not result in the elimination of an essential job function, the creation of an entirely new position, or significant pressure being placed on either the company’s financial health or the responsibilities of other employees, then you have no reasonable accommodation to offer and you have fulfilled your obligations under the ADA.

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Dorsey & Whitney

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