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«Brief No. 22 EMPLOYMENT May 2014 Legal Briefings Prepared by: Barry C. Taylor, Vice President of Systemic Litigation and Civil Rights and Rachel M. ...»

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In one case, Equal Employment Opportunity Commission v. Denny’s, Inc., the court held that it did not. There, a restaurant manager was terminated after she underwent an above-knee amputation.51 The manager returned from medical leave and asked to Brief No. 22 May 2014 The ADAUnder the ADA: The New Legal Qualified n the Hospitality Setting Battleground After the ADA Amendments Act work a light duty part-time schedule. Although Denny’s initially agreed, it terminated the manager’s employment after five days on this modified schedule after finding that she was a “safety hazard.”52 In its motion for summary judgment, Denny’s asserted that the manager was not otherwise qualified, as she could not perform the essential functions of the restaurant manager position which entailed moving quickly between tasks and moving around the entire restaurant. Denny’s argued that managers were expected to step in and perform the tasks of other positions, such as cleaning, cooking, stocking, Battleground After the ADA Amendments Act and lifting. Disagreeing with Denny’s, the court relied on the manager job description Qualified Under the ADA: The New Legal which listed only supervisory and administrative tasks. The court also considered the manager’s description of her own job, which she testified was not physically demanding as she spent most of her time interacting with customers, handling paperwork, and instructing other employees. The court was further persuaded by a vocational counselor that observed the restaurant operations for two days and never observed a manager performing a non-managerial task that could not have been performed by another available employee as a matter of managerial discretion.

Another court, however, came to the opposite conclusion. In Burnett v. Pizza Hut of America, Inc., the plaintiff, a restaurant manager, started to experience sleeplessness, muscle and joint pain, depression, and generalized fatigue and was ultimately diagnosed with fibromyalgia, musculoskeletal pain, and inflammatory arthritis.53 Her doctor issued various restrictions on her including inability to lift more than 20 pounds and inability to do repetitive motions of her upper extremities. After a medical leave, the restaurant manager sought to return to her managerial position with restrictions, but Pizza Hut denied her this opportunity. On Pizza Hut’s motion for summary judgment, the court considered whether the manager was qualified to perform the essential job functions of a restaurant manager and concluded that she was not. While the manager argued that a managerial position was only to manage and did not include the physical tasks otherwise performed by supervised employees, the court found that Pizza Hut provided ample evidence that it had legitimate business reasons for expecting and requiring managers to assist in performing physical labor tasks when necessary, such as training employees, filling in for late or absent employees, and covering positions during scheduled low volume periods. Pizza Hut also provided evidence that all restaurant managers were responsible for ensuring that all jobs were performed, including those of a physical and repetitive nature.

Deciding Essential Functions: Distinguishing the Manner of Performing Essential Function From the Function Itself The EEOC has made clear that in identifying an essential function, the employer should focus on the function and the result to be achieved, not on the manner in which the function is presently performed.54 This is an important distinction because an individual with a disability may be qualified to perform the function, but a reasonable accommodation would enable the individual to perform the task in a different way.

Thus, although the function itself may be essential, the way that it is performed may Brief No. 22 May 2014 The ADAUnder the ADA: The New Legal Qualified n the Hospitality Setting Battleground After the ADA Amendments Act not be.

Courts have generally applied this concept. In Keith v. County of Oakland, the parties agreed that communicating was an essential function of a lifeguard’s position.55 However, they disagreed on whether verbal communication was essential. In this case, Keith had successfully completed lifeguard training and applied for a lifeguard position at Oakland County’s wave pool. Keith received an offer of employment, subject to a Battleground After the ADA Amendments Act pre-employment physical. During the physical, the doctor looked at Keith’s medical Qualified Under the ADA: The New Legal history and stated: “He’s deaf; he can’t be a lifeguard.”56 In defending this lawsuit, Oakland County argued that Keith was not “otherwise qualified” to be a lifeguard because due to Keith’s deafness, he could not effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons. Keith, on the other hand, asserted that he could communicate with his colleagues and with guests, through non-verbal forms of communication. The Sixth Circuit determined that Keith presented sufficient evidence of his ability to communicate through non-verbal means.

Specifically, the court looked to the fact that Keith could communicate with distressed swimmers through the “10/20 standard of zone protection” where lifeguards scan their entire zone every ten seconds and ensure their ability to reach any part of their zone within twenty seconds, a technique that is purely visual. Similarly, Keith could also communicate with other lifeguards; even if he could not hear another lifeguard’s whistle, by looking at other lifeguards while scanning his zone. The court also explained that Keith could communicate to enforce safety rules by relying on physical gestures such as shaking his head, motioning his hand backward, or signaling the number one, all non-verbal strategies typically employed by lifeguards. The Keith case highlights the importance of looking beyond initial beliefs about how a specific function can be achieved.

The function versus manner distinction was also emphasized by the court in Zombeck v. Friendship Ridge, where the issue was whether a nurse’s aide was qualified in light of her lifting restrictions.57 In Zombeck, a nurse’s aide stopped performing the lifting portion of her nursing aid duties after experiencing two work-related injuries. She worked in this modified position for thirteen years, but was ultimately terminated due to her lifting restrictions. The court found that a reasonable juror could conclude that lifting was not an essential function of the plaintiff’s position. Within its detailed analysis, the court reviewed the employee’s job description, and emphasized that the list of “essential functions” lacked any explicit reference to lifting, but rather stated that a nurse aide “helps transfer” a resident. Citing the ADA’s legislative history, the court emphasized that “the essential function requirement focuses on the desired result, rather than the means of accomplishing it.”58 In this case, the employer’s desired result was transferring residents, which could have occurred through lifting or through another means, such as using a mechanical lift, as requested by the plaintiff. Thus, the plaintiff’s claim could proceed.

Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act However, the function versus manner distinction will not save an employee’s case if the manner is intrinsically intertwined with the function. In Walter v. Wal-Mart Stores, Inc., the plaintiff, a greeter at Wal-Mart with a degenerative neurological condition and limited fine motor skills, was physically unable to use Wal-Mart’s Telxon scanner, a handheld scanner which printed merchandise-specific labels.59 The greeter argued that using the Telxon machine was simply the method of performing an essential function— processing returns—and argued that he should be able to process returns in a different Battleground After the ADA Amendments Act manner, as an accommodation. Specifically, he asserted that he should be able to Qualified Under the ADA: The New Legal process returns by placing stickers on returned merchandise, as Wal-Mart used to do.

The court disagreed, and explained that Wal-Mart had intentionally implemented the Telxon machine in response to the legitimate problem of fraud and shrinkage, which the sticker-system did not prevent. Consequently, the court found that operating the Telxon machine was, in fact, an essential function of the greeter position.

The Walter case teaches another lesson as well: courts generally permit employers to change the essential functions of a specific position, especially when there is a legitimate reason for doing so.60 In Walter, before implementing the Telxon system, one of the greeter’s jobs was to provide requested assistance with merchandise returns, which he did by placing a pink sticker on returned merchandise and directing customers to customer service desk. However, after determining that this procedure resulted in significant fraud and shrinkage, it implemented a new system, and replaced the pink stickers with Telxon, a hand-held scanner which printed merchandise-specific labels. According to the court: “[a]n employee’s job description is permitted to evolve, and ‘an employer is not required to maintain an existing position or structure that, for legitimate reasons, [the employer] no longer believes is appropriate.’” This principle is also articulated by the EEOC in its Technical Assistance Manual.61 Deciding Essential Functions: Impact of Temporarily Waiving Essential Functions Courts consistently hold that an employer’s decision to “waive” an essential function for a temporary period of time does not mean that the function is not essential. The policy reason behind such doctrine is that courts do not want to punish employers for going above and beyond the ADA’s requirements.62 A number of recent ADA cases confirm this general concept.

For instance, in Hancock v. Washington Hospital Center, a medical assistant with a nerve condition had reached an arrangement with her employer where she was not required to perform triage duties.63 In her subsequent ADA lawsuit, the medical assistant argued that she was qualified, despite her inability to perform triage duties, because her employer had “waived” the essential function of triage due to her disability. The court disagreed, explaining that the case law overwhelmingly holds that employers do not irrevocably waive essential functions by providing short-term accommodations. Explaining its rationale, the court stated that an accommodation that eliminates an essential function is unreasonable under the ADA, even if the employer Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act voluntarily provided it in the past. Thus, the court upheld a jury verdict finding the medical assistant not qualified given her inability to perform triage duties.

Similarly, the court in Minnihan v. Mediacom Communications Corporation found driving to be an essential function of a technical operations supervisor position, rejecting the plaintiff’s argument that because his employer had accommodated him for a temporary period of time, driving was not an essential function of his position.64 See

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Perhaps the most extreme example is from a 2001 case, which also demonstrates the difference a change in management can make for employees with disabilities. In Phelps v. Optima Health, Inc., after sustaining a back injury, a nurse left her position and became a “medication nurse” responsible for delivering medication and other tasks that did not involve lifting.65 As a result of a nurse shortage, the nurse began to undertake some responsibilities for patient care, but because of her lifting restriction, shared a patient load with her sister, who was also a nurse. This job-sharing arrangement was never officially approved by human resources, but was unofficially approved by the nurse’s manager. However, after a change in management, the nurse was terminated due to her lifting restriction. Here, the parties agreed that lifting was an essential function of a clinical nurse position, but the nurse argued that she was not a clinical nurse. Instead, she had a nursing position created for her in light of her physical restrictions. The court disagreed. It held that the evidence established that at the time of her termination, the nurse worked as a clinical nurse with unwritten job modifications. Consistent with the rationale in Hancock and Minnihan, the court held that even when an employer and employee make arrangements to accommodate an individual’s limitations, courts evaluate the essential functions of the position without consideration of those arrangements.

However, there are cases where the court emphasizes that the employee has performed the position for some time without consequences, and as a result, the function may not be essential. For instance, in Zombeck v. Friendship Ridge, the case about the nurse aide with a lifting restriction, in addition to other factors, the court found persuasive the fact that the plaintiff did not lift for a thirteen-year period, but maintained the title of “nurse aide” without receiving any unsatisfactory formal performance evaluations.66 As a result, it concluded that lifting was not an essential function. Similarly, in the Bambrick v. Sam’s West, Inc., case, in concluding that the plaintiff created a genuine issue of material fact as to whether lifting fifty pounds was an essential function of a manager of the photography lab, the court noted that the plaintiff had worked in the position without lifting for a number of years.67 Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act Deciding Essential Functions: Consequences of Medical Documentation One issue that sometimes catches employees off guard is when their own medical documentation is used to demonstrate that the employee is not qualified under the ADA. In some instances, the employee’s doctor overemphasizes the person’s limitations to ensure that the person is covered under the ADA, but that then undercuts the employee’s qualified argument.

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