From the blog that brought you “Can a bridge worker with a fear of heights have a viable ADA claim?,” comes news of a recent federal-court decision which — well — you read the title to this blog post.
In RRRRRRRRRRRRRRico v. Xcel Energy, Inc. [cue music] the plaintiff, an apprentice lineman working for a utility company, was ordered by his doctor not to climb utility poles due to a back injury suffered on the job. The plaintiff alleges that he sought a transfer and, instead of getting that transfer, was terminated and told to apply for long-term-disability benefits. Plaintiff alleges that the defendant then offered him a job at a lower rate of pay as a “substation electrician,” which the plaintiff accepted. The defendant allegedly also eliminated Plaintiff’s three years of seniority as an apprentice lineman.
The plaintiff subsequently sued for disability discrimination. The defendant argued that the plaintiff’s back injury was not a disability, as defined under the Americans with Disabilities Act Amendments Act. The court, however, disagreed and kept the case alive so that the plaintiff could develop a factual record which may indicate that his back injury “substantially limits [his] to perform a major life activity as compared to most people in the general population.”
So, what can we learn from this post?
- My song choice was weak, at best.
- Under the ADAAA, it’s not hard for a plaintiff to prove that he/she is disabled. The Rico Court emphasized that this is not a lofty burden. Therefore, when an employee comes to you requesting a reasonable accommodation for a workplace injury, more likely than not, that employee is disabled. So, focus instead on engaging in an interactive dialogue to determine what reasonable accommodation(s), if any, will allow the employee to perform the essential functions of the position.
- Don’t lose the forest for the trees. It may seem obvious that an essential function of being a utility worker is to — you know — climb utility poles. However, under the ADA, an employer must still consider reasonable accommodations for a disabled employee that can’t get up the pole. Maybe, a temporary light-duty restriction. Or a transfer to another open position for which the employee is qualified. (Heck, according to this recent case, accommodation through appointment to a vacant position is reasonable and, absent a showing of undue hardship, an employer must implement such a reassignment policy).