Articles Posted in Disability

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.”

Much has been written lately in the blawgosphere about telecommuting as a reasonable accommodation under the Americans with Disabilities Act for qualifying disabled employees.

Last month, Jon Hyman posted (here) about this case, in which a federal court in Ohio held that telecommuting may be a reasonable accommodation based on the unique facts concerning the employee and the workplace — and that issue was up to a jury to determine.

Earlier this month, I came across another case (EEOC v. Ford Motor Co.), in which a Michigan federal court also recognized that telecommuting may be a reasonable accommodation. However, unlike the prior Ohio decision, the Michigan court recognized that there are some telecommuting arrangements that are just so impractical that no jury would conclude that telecommuting is a reasonable accommodation.

Readers of this blog know (here, here, and here) that if a disabled employee requests an indefinite leave of absence from work, the Americans with Disabilities Act does not require you to provide it. Why? Because that accommodation is not reasonable.

[Editor’s note: Obsessed much, Eric? Three posts about the same topic?!? Why don’t you just share with your readers about how you refused to drink anything other than water for hours after yesterday’s Labor Day lunch of chilaquiles, just so you could continue to savor the satisfying burp-flavor of red sauce and refried beans. TMI, Eric. TMI….]

To the two remaining readers who made it this far, I’ll school you on requests for an indefinite reprieve from essential job functions after the jump…

*** belches, draws dirty look from wife, smiles ***

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Last week, we had a two-part series on the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. The former clearly obligates employers to afford leave to an eligible employee to care for a sick child. But, what about the latter? That is, must an employer provide leave from work as a reasonable accommodation to an employee to permit her to care for a disabled child?

In a case decided earlier this month (Magnus v. St. Mark United Methodist Church), the Seventh Circuit Court of Appeals held that the ADA does not require employers to provide reasonable accommodations to non-disabled workers.

However, that does not mean that employers have carte blanche to discriminate against employees who must care for disabled loved ones. Here are a couple of other lessons from the Seventh Circuit:

Tammy Rosebrough was born without a left hand. In September 2007, she applied for a cook position at Buckeye Valley North High School. However, due to a shortage of bus drivers, the school encouraged Rosebrough to become a bus driver. Rosebrough accepted.

Rosebrough claimed that, during her training, her trainer made discriminatory comments to her about her disability on two separate occasions. Rosebrough reported the comments and was informed that her concerns would be addressed.

Later, during her training, Rosebrough was informed that she would need a commerical driver’s license (CDL). She scheduled a CDL test with the State, but later cancelled when her trainer was unavailable to take her to the test. Over the next several months, Rosebrough contacted several other testing centers and school districts but learned she could only be trained by the school district that ultimately hired her. Rosebrough never contacted Buckeye Valley again to return and finish her training.

That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Under the Americans with Disabilities Act, an employer is required to provide a reasonable accommodation, if doing so will allow a disabled employee to perform the essential functions of his job. Could this mean having to create a brand new position for a disabled employee?

Nope. A federal appellate court underscored this last week (opinion here) when if affirmed a lower-court decision to dismiss a plaintiff’s claims under the ADA that his former employer had failed to accommodate his disability: