Disability Battles Continue (And Even Wins Cost Time and Money)

30 July 2012 Labor & Employment Law Perspectives Blog

The Eighth Circuit Court of Appeals recently ruled on a disability claim — agreeing with the lower court’s decision in favor of the employer — that the Americans with Disabilities Act did not require creating a job within the (restricted) abilities of the employee. Otto v. City of Victoria. While many aspects of the decision seem straightforward, the decision serves to illustrate the willingness of some individuals (and their attorneys) to fight about employment decisions as well as the need for employers to have a good story to tell to support an adverse employment decision.The employee had worked for the City of Victoria for almost 25 years in a position responsible for maintenance, including repairing curbs and gutters, snow plowing, mowing, tree trimming, and trash and hazard removal, along with other maintenance duties related to streets, parks, and buildings. The employee suffered an on-the-job injury and underwent surgery.

The employee’s doctors ultimately concluded the employee had permanent restrictions, including being limited to four hours of sedentary work per day and lifting restrictions of occasionally being able to lift up to 15 pounds. In light of the restrictions, the city’s personnel committee recommended termination of employment, and the city council followed suit.

In contrast to his doctors’ assessment, the employee told the city council he was able to return to work. Notably, the court said the ADA does not require an employer to allow an employee to perform functions that a treatment provider has forbidden. This single item is worth noting — a professional medical opinion will win the day and trump the opinions of those without the proper pedigree — no matter how close they may be to the situation. Similarly, the employee argued he could perform essential functions of his prior maintenance job with a back brace. But the court disagreed, saying evidence that a lumbar support helped the employee in some circumstances did not amount to evidence that it would have overcome his restrictions and allowed him to perform the essential job functions, including heavy lifting.

In the lawsuit, the employee claimed that the city could have accommodated his restrictions. In particular, the employee sought either a part-time job as an attendant at the hockey rink or thought the city should assign other employees to help him with assigned duties. The court disagreed, finding that the city was not required by the ADA to create a job to accommodate the employee’s restrictions.

The increased emphasis on examining the employer’s conclusions about accommodations it deems unreasonable (following the ADA amendments) was surely a contributing factor to the employee’s decision to pursue the matter). While the court’s decision was ultimately a positive one for the employer, the employee saw fit to litigate the issue, including an appeal once the lower court decided against him. The likelihood of challenges to employers’ conclusions about employee accommodations, especially when an employee perceives his livelihood is at stake, is reason for employers to invest time, and perhaps some financial resources, early in the process. Accommodation decisions are very fact-specific, and employers should ensure they have explored options and can offer support of any decision that does not provide accommodation.

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