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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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Battleground After the ADA Amendments Act In one recent case, an employee was found to be unqualified because her doctor did Qualified Under the ADA: The New Legal not release her to return to work. In Lane v. Prince George’s County Public Schools, a teacher sued her school district alleging that her principal did not grant her request for certain accommodations.68 The court found the teacher not qualified, in light of her doctor’s instructions to either take leave from work or to retire in light of her medical conditions. Said the court: “It is well-settled that an individual who has not been released to work by his or her doctor is not a ‘qualified individual with a disability.’”69 In other cases, work capacity reports or requests for accommodation impose restrictions on employees that suggest the employee is unqualified. For example, in Tjernagel v. Gates Corporation, overtime was considered an essential function of the employee’s position.70 The employee provided a medical work capacity report, which required various restrictions, including no overtime. Because overtime was an essential function of the position, the employee was terminated. Following her termination, the employee asked if she could return to her job if she had the overtime restriction removed. Her doctor then sent a second report removing the overtime restriction, but this did not save her ADA claim. The court explained that the second work capacity report was written as a self-report, as it stated that the employee “reported to his office she needed no accommodations or restrictions to perform the essential functions of her former job at Gates.”71 Although not specifically about reasonable accommodations, the Tjernagel case cautions employees not to provide medical support for accommodations that arguably remove essential functions. See also Cefalu v. Holder, 2013 WL 5315079 (N.D. Cal.

Sept. 23, 2013) (concluding that the special agent was not qualified because his medical restrictions overlapped with the essential function of being able to lift a gun).

Judicial Interpretation: Specific Essential Functions Certain functions have seen significant action in the case law, requiring courts to determine whether they are essential in a variety of employment situations.

Specific Essential Functions: Attendance and Punctuality Whether attendance and punctuality are essential functions is a question that courts consider regularly, especially when deciding whether accommodations such as leave Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act and telework are reasonable. While both are frequently considered essential, a number of recent court decisions demonstrate various situations where attendance and punctuality are not necessary essential.

In E.E.O.C. v. Ford Motor Company, a resale steel buyer with severe irritable bowel syndrome requested to telework as a reasonable accommodation because she could not be present in the office on a full-time basis.73 The Sixth Circuit noted that while

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Qualified Under the ADA: The New Legal such that attendance at the workplace no longer is assumed to mean attendance at the employer’s physical location. The court said that the “law must respond to the advance of technology in the employment context... and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.”74 The employer’s primary argument for physical presence was that teamwork was integral to the resale buyer position, which was best done through face-to-face interactions. The buyer rebutted that statement by arguing that in her experience, even when physically present at the facility, the vast majority of communications were done via conference calls. Due to that argument, and the fact that her position was not one that actually required face-to-face interactions, the buyer successfully established a genuine issue of whether face-to-face interactions and consequently, physical presence in the workplace, was essential for her position.

The increased reliance on technology has also allowed employees to work remotely on a regular basis, providing another reason for courts to determine that regular attendance may not be an essential function. In Walker v. NANA WorleyParsons, LLC, Walker was hired as a project controls specialist in 2003, and her offer letter stated that she would work remotely one to two days per week and in the office three to four days per week.75 She was the only employee in her position permitted to work remotely. In 2004, Walker was diagnosed with fibromyalgia, and by 2007, was working approximately two days per week in the office and remotely the rest of the time due to her disability. In 2009, Walker’s employer required her to work in the office full-time, and after various disputes on the subject, she was terminated. The employer argued that Walker was not qualified because she could not perform the essential functions of her job, namely attendance. The court disagreed, and found that Walker established a genuine issue of fact on this issue. Even though Walker was the only employee in her position allowed to telework, her job description did not require in-office attendance, and her position was not one that would necessarily require physical attendance in the workplace. See also EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation, available at http://www.eeoc.gov/facts/telework.html (“[A]llowing an employee to work at home may be a reasonable accommodation where the person's disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense”).

Further, when a company provides leave for various non-disability related reasons, Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act courts have questioned whether attendance is actually essential. For example, in E.E.O.C. v. AT&T Corporation, the court considered whether attendance was an essential function for a call center specialist.76 The evidence offered by the employer was a final written warning given to the employee and the manager’s testimony. In support of its decision, the court emphasized that the employer’s job description “is silent as to whether attendance is an essential function” and noted that the company has 22 “formal” leave of absence plans.77 As such, the court concluded that the Battleground After the ADA Amendments Act plaintiff’s claim could proceed past summary judgment.

Qualified Under the ADA: The New Legal Specific Essential Functions: Rotating Shifts Recent caselaw suggests that employers who consistently rely on rotating shifts can show that shift rotation is an essential function. For instance, in Kallail v. Alliant Energy Corporate Services, Inc., the plaintiff worked for a company with a facility in Iowa, where the employees were placed in teams of two people, who worked a nine-week schedule rotating between twelve-hour shifts and eight-hour shifts.78 Due to her diabetes, the plaintiff requested a permanent eight-hour shift as an accommodation. In her ADA suit, the plaintiff argued that rotating shifts were not an essential function, asserting that the company’s facility in Wisconsin regularly used eight-hour shifts.

Rejecting the plaintiff’s argument, the court explained that the Iowa facility differed from the Wisconsin facility, as the Wisconsin facility operated under a collective bargaining agreement and had different duties. This case also highlights that rotating shifts are not always essential functions, depending on the employer’s structure.

Other courts have come to similar conclusions. In Boitnott v. Corning Inc., the plaintiff worked as a maintenance engineer, and after a heart attack, requested that he work only eight hours a day instead of his typical rotating shift schedule.79 Just as it did in Kallail, the court concluded that the ability to work rotating shifts was an essential function of the engineer’s position. It reasoned that the employer had made a legitimate business decision, as such shift rotation allowed for coverage of the 24-hour production process to repair any emergency situation. The court also credited the employer’s explanation that mandatory shift rotating created consistent work teams and greater flexibility. See also Rehrs v. Iams Co., 486 F.3d 353 (8th Cir. 2007) (finding rotating shifts to be an essential function, as there were no permanent exceptions to this rule, all subsidiaries of P&G worked under this system, and the employer showed that rotating increased productivity).

In E.E.O.C. v. Union Carbide Chemicals & Plastics Co., Inc., however, the court held that whether or not rotating shifts was an essential function for the job of lab technician was at the plant or merely a convenient condition of employment was a fact specific issue, properly determined by the trier of fact after a trial on the merits, and not by a court on a motion for summary judgment.80 See also Szarawara v. Cnty. of Montgomery, 2013 WL 3230691 (E.D. Pa. June 27, 2013) (finding summary judgment improper when the issue was whether working night shifts was an essential function of Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act the plaintiff’s job, as the defendant provided no authority to support its contention).

Further, it is important to note that employers will have a more difficult time arguing that a rotating shift is essential if it does not consistently apply the shift requirements to all employees, and if shift rotation is excused for non-disability related reasons. For example, in Russo v. Jefferson Parish Water Department, the court found that working a rotating shift was a question of fact, especially in light of the evidence that various positions did not work rotating shifts.81

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In making a decision, other courts have examined the reason why overtime is required.

For example, in Davis v. Florida Power & Light Co., the Eleventh Circuit concluded that mandatory overtime was an essential function for an employee of a utility provider.83 The court balanced the facts that the employee agreed to work overtime as a condition of employment, other employees worked a substantial amount of overtime, and the employee’s formal job description did not require overtime. However, the court focused on the fact that the defendant’s business model required overtime to succeed because the defendant had a same-day connect and reconnect policy, and implemented such policy through mandatory overtime. The court found it telling that overtime was so important to the defendant, that the defendant had bargained for mandatory overtime and the requirement was in the union’s collective bargaining agreement.

Unlike in Davis, the absence of mandatory overtime in a job description helped the plaintiff establish a genuine issue of material fact in Feldman v. Olin Corporation.84 In Feldman, the plaintiff worked as a tractor operator. Due to his fibromyalgia and sleep apnea, he requested a different position with no mandatory overtime (and a straight work schedule). The Seventh Circuit denied summary judgment, finding a genuine issue of material fact as to whether overtime was an essential function of the job. In so holding, the court found evidence supporting both parties’ arguments. The employee argued that overtime was not listed as a requirement in the written job descriptions, although it was included as a mandatory requirement in job descriptions for other positions. The employee also provided data indicating that overtime was rarely worked by others in his position. Conversely, the employer asserted that the consequences of exempting employees would be dire, as fires sometimes break out that require all essential personnel to work until the fires are out, even if that requires overtime. In light of the conflicting evidence, the Seventh Circuit allowed the plaintiff’s claim to proceed.

Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act Specific Essential Functions: Lifting Lifting is another function that has been the subject of much litigation. The case law does not draw any clear lines as to when lifting is, or is not, an essential function, reminding litigants of the inherent fact-specific nature of qualified cases. Lifting is included in many job descriptions as a perfunctory function without any connection to the particular job. Because it is so frequently listed as a job function, it often is an issue in ADA litigation.

Battleground After the ADA Amendments Act Qualified Under the ADA: The New Legal In Majors v. General Electric Co., the court found the ability to lift twenty pounds to be an essential function of a purchased material auditor position.85 The plaintiff argued that she should have been promoted to the auditor position, and the employer argued that she was not because her permanent lifting restrictions rendered her unable to perform certain essential functions. In reaching its conclusion, the court considered the position’s job description, which required “intermittent movement of heavy objects,” the testimony of another employee and manager about the need to lift over twenty pounds, and testimony from the employer’s labor resources manager and ergonomic technical specialist who weighed objects required to be lifted by material auditors and verified that the objects weighed over twenty pounds. See also Brickers v. Cleveland Bd. Of Educ., 145 F.3d 846 (6th Cir. 1998) (finding lifting to be an essential function of a school bus attendant position, due to the need to lift students with disabilities in emergencies); Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001) (concluding lifting was an essential function of clinical nurse position).

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