Case Management Under the Americans With Disabilities Act

Nancy L. Schott

Counsel-General Litigation
Ford Motor Company
1500 Parklane Towers West
3 Parklane Boulevard
Dearborn, Michigan 48126

INTRODUCTION

Title I of the Americans With Disabilities Act (ADA), 42 USC §§ 12112-14 (1992), is the most comprehensive, and most litigated, employment statute enacted by the U.S. Congress since 1964. A detailed analysis of ADA is outside the scope of this abstract, which will focus on aspects of ADA, and cases recently decided under ADA, affecting case management, defined for purposes of this presentation as: the individualized assessment and placement of individuals focusing on their specific conditions and abilities. In brief, ADA prohibits discrimination against an individual with disabilities and requires that an employer provide reasonable accommodation to enable a qualified individual with disabilities to perform the essential functions of the job. Accommodation is not required if it would impose an undue hardship on the employer to do so. Reasonable accommodation requires an individualized assessment of the individual's medical condition and an individualized assessment of the job(s) to which the individual is to be assigned. Similarly, case management focuses on the individual and appropriate treatment of that individual.

INDIVIDUALIZED ASSESSMENT
Essential Functions of the Job

Guidelines promulgated by the Equal Employment Opportunity Commission (EEOC) give some assistance in differentiating between "essential" and "marginal" functions of a job. 29 CFR § 1630, et seq. (1991) and subsequent revisions. Of the factors specified by the EEOC as evidencing that a job duty is an essential function, the factors relied on most frequently by the courts are the employer's judgment and workplace reality: what the employee with disabilities, and similar employees, really has to do in order to perform the job. For example, in Jacques v. Clean-Up Group, Inc., 5 AD Cases (BNA) 1594 (1st Cir. 1996), the Court found that a request for a later starting time for an employee with epilepsy who could not drive did not have to be accommodated because an 8:00 a.m. starting time was an essential function of the job. Lifting was found to be an essential function of a grocery stock clerk's job in Bivins v. Bruno's, Inc., DC MGa, No. 5:95-cv-400-4 (WDO) (2/20/97). In that case, a rehabilitation assessment determined that the employee could only perform 50% of the job because of his 10 pound lifting restriction. The Court decided that the employer was not required to change the employee's duties, thereby requiring other employees to work longer hours or work harder, and therefore no reasonable accommodation was possible. Similarly, in Kuehl v. Wal-Mart Stores, Inc., 5 AD Cases (BNA) 91 (DC Colo. 1995), the Court agreed that standing was an essential function of the job of "door greeter" and that the employer was not required to provide a stool and allow the employee to sit near the door.

Several cases have held that regular attendance is an essential function of every job and that an individual who cannot meet regular attendance requirements is not a "qualified" individual with a disability. See Acquinas v. Federal Express, 6 AD Cases (BNA) 485 (DC SNY 1996)(employer "repeatedly and unambiguously" informed employees that daily attendance was imperative to success of operations); Price v. S-B Power Tool, 5 AD Cases (BNA) 277 (8th Cir. 1996), cert. denied 5 AD Cases (BNA) 1728 (1996) (excessive absenteeism was legitimate, nondiscriminatory reason for dismissal).

Individual Abilities and Disabilities

ADA requires an individualized assessment of each person's abilities and disabilities. Not all persons with the same medical condition have the same abilities or disabilities. For example, several recent cases have involved employees who developed carpal tunnel syndrome and the issue of whether the employee was substantially limited in the major life activity of working. In EEOC v. Joslyn Manufacturing Co., 5 AD Cases (BNA) 1220 (DC NIll. 1996), the Court held that an employee whose work history consisted of manual labor, and whose medical condition required restrictions against repetitive motions, was substantially limited. The Court found that a medical condition which foreclosed the individual from a broad range of jobs in an industry or even in a large company caused the employee to be regarded as disabled under ADA. Accord Smith v. Kitterman, 4 AD Cases (BNA) 1487 (DC WMo. 1995) (employee had not finished high school, had no other job training, was 42 years old and had worked in factory since she was 18). Compare those decisions with the one in McKay v. Toyota Motor Manufacturing, U.S.A., Inc., 6 AD Cases (BNA) 933 (6th Cir. 1997), which involved a 24 year old employee who was a college graduate and whose carpal tunnel syndrome required restrictions against lifting over 20 pounds, use of vibrating tools, and repetitive use of one hand. In that case, the Court held that the employee was not substantially limited from working, because she was not restricted in her ability to perform a broad range of jobs as compared to similarly situated persons with comparable training, skills and abilities. Accord Lamury v. Boeing, 5 AD Cases (BNA) 39 (DC Kan. 1995)(sheet metal worker not restricted from broad range of jobs and claim barred by workers' compensation settlement based on claim of total disability).

Employee Participation in Accommodation Process

In addition to an individualized assessment, EEOC guidelines require that an employer engage in an "interactive process" with the employee to determine what accommodations, if any, are required to enable the employee to perform the essential functions of the job. 29 CFR § 1630.9 (1996). However, the employer is not required to do an assessment or begin that process unless the employee notifies the employer of a disability and requests accommodations for that disability. In Hunt-Golliday v. Metropolitan Water Reclamation District, 6 AD Cases (BNA) 725 (7th Cir. 1997), the employer made accommodation for the employee's back injury and pregnancy (neither of which was a "disability" as defined by ADA), but not for her alleged mental disability of depression and anxiety. The Court decided that the employee did not inform the employer of her mental disability, and did not give the employer enough basis to require an inquiry about her need for accommodation. The Court also held that the duty to engage in an "interactive process" with the employee is limited by the employer's knowledge of the disability.

As part of the accommodation process, the employee is required to inform the employer of any specific accommodations needed. See Beck v. University of Wisconsin Board of Regents, 5 AD Cases (BNA) 304 (7th Cir. 1996)(employer not liable for failure to accommodate when employee failed to give "adequate understanding" of what action was needed). If the employee attempts to request accommodation but cannot clearly defined what is needed, the employer may be obligated to obtain additional information, either from the employee or from the employee's health care provider(s). Bultemeyer v. Ft. Wayne Community Schools, 6 AD Cases (BNA) 67 (7th Cir. 1996). However, if the employee fails or refuses to provide requested information, or access to information, the employer is not required to provide accommodation. See McAlpin v. National Semiconductor Corp., 5 AD Cases (BNA) 1047 (DC NTex. 1996)(employer not obligated to search out information uniquely in the employee's hands, particularly when she was not responsive to requests for further information).

Accommodation Not Always Required

ADA does not always require that an accommodation be provided, even if the accommodation is necessary to enable an employee to perform the job. For instance, if the requested accommodation would violate a collective bargaining agreement's seniority provisions, the accommodation would constitute an undue hardship on the employer and other employees and it does not have to be provided. See, e.g., Eckles v. Consolidated Rail Corp., 5 AD Cases (BNA) 1367 (7th Cir. 1996)(collectively bargained seniority rights have a preexisting special status in the law that Congress has not seen fit to alter by enactment of ADA).

ADA does not require an employer to change or lower performance standards to accommodate an employee with disabilities. EEOC Compliance Manual, § 902.2, n. 11, Definition of the Term "Disability", 8 FEP Manual (BNA) 405-7259, n. 11 (1995). See Milton v. Scrivner Inc., 4 AD Cases (BNA) 432 (10th Cir. 1995)(employer could required employee with disabilities to meet increased production standard); Bolstein v. Reich, 3 AD Cases (BNA) 1761 (D DC 1995) (employer not required to change job requirements for attorney with mental disability, offer of transfer to another position at a lower grade was sufficient).

Numerous cases have determined that an employer may hold an employee with disabilities to the same standards of conduct expected of all employees, and may terminate employees with disabilities for misconduct, even if the misconduct is related to their disabilities. In one of the most recent of those cases, Williams v. Anheuser-Busch, 6 AD Cases (BNA) ___, DC MFla., No. 95-1620-CIV-T-17E, 2/24/97, the employee claimed his misconduct (announcing at a bar that he urinated in the beer at the brewery where he worked) was caused by his alcoholism. The Court did not address whether the employee's current use of alcohol took him outside the protection of ADA, but assumed that the employee had a disability as defined by ADA. Nevertheless, the Court held, there is no ADA violation in treating an alcoholic employee the same way it would treat a nondisabled employee: terminating him for disparaging the company's product and jeopardizing consumer faith in that product.

MEDICAL PARTICIPATION

Medical personnel are frequently involved with, and often indispensable in, many issues affected by ADA. Medical professionals are required to determine whether an employee or applicant poses a direct threat to himself/herself or others, to perform medical examinations and testing, and to maintain the necessary confidentiality of medical information. Recent cases have decided issues relating to ADA and medical requirements.

Direct Threat

Factors relevant to determining whether an employee poses a direct threat include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. EEOC Guidelines, 29 CFR §1630.2(r)(1996). A direct threat can only be substantiated if there is no reasonable accommodation which can eliminate the threat. In one of the more recent cases on the issue of direct threat, the Court found that there was no evidence that the employer could have made the employee's worksite safe in light of his seizure disorder. Moses v. American Nonwovens, Inc., 5 AD Cases (BNA) 1651 (11th Cir. 1996). The employee in Moses had epilepsy. His job required him to work near machinery which reached high temperatures. The Court agreed with the employer's determination that allowing him to remain on the job would pose a direct threat to the employee's own health and safety and thus held the employer did not violate ADA when it discharged him.

A direct threat analysis must consider the type of job the employee holds and the nature of the employee's disability. Cases involving HIV-positive employees illustrate the importance of the job specifics. In one of the earliest cases decided under ADA, Bradley v. University of Texas M.D. Anderson Cancer Center, 2 AD Cases (BNA) 1297 (5th Cir. 1993), cert. denied 3 AD Cases (BNA) 192 (1994), the Court decided that a surgical assistant could be transferred to a non-surgical position, even though the risk of transmission was small. The Court held that the risk was not small enough to nullify the "catastrophic consequences" of an accident, and that there was no way to eliminate the risk of transmission associated with the essential functions of the surgical job. Accord Doe v. University of Maryland Medical System Corp., 4 AD Cases (BNA) 379 (4th Cir. 1995). Compare these cases with EEOC v. Prevo's Family Market, 5 AD Cases (BNA) 1527 (DC WMich. 1996), which involved an HIV-positive produce clerk in a food store. The Court in Prevo's found that there was no risk of transmission posed by the essential functions of a produce clerk job, and held that the clerk did not pose a direct threat to customers or co-workers.

Medical Questions and Confidentiality

Employers must maintain medical records in a confidential manner, separate from other employment records and accessible only to (i) medical personnel (including first aid and safety personnel, if the disability might require emergency treatment), (ii) supervisors and managers, who may be told about job restrictions (but not the medical diagnosis or basis for those restrictions); (iii) governmental officials investigating ADA compliance; and (iv) as necessary to perform their functions, insurance carriers and workers' compensation representatives. 42 USC §§ 12112(d)(3)(B), (4)(C) (1996); EEOC Guidelines, 29 CFR § 1630.14(b)(1996).

Prior to making an offer of employment, an employer may not require an applicant to undergo a medical examination and may not ask the applicant medical questions. EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, 8 FEP Manual (BNA) 405:7193 (1995). Post-offer, preemployment medical examinations may be required only if required of all employees in the classification(s). Id. Medical inquiries and examinations during employment must be job related and justified by business necessity. 42 USC § 12112(b)(6)(1994); EEOC Guidelines, 29 CFR §§ 1630.10, 1630.14(b)(3), 1630.15(b) (1996).

Although these criteria have remained the same since ADA went into effect in 1992, some employers have found it difficult to apply the regulations. For instance, in EEOC v. Prevo's Family Market, supra, in addition to finding that the HIV-positive employee posed no direct threat, the Court held that the employer's inquiries about his medical condition and its proposed medical examination were not justified under the "job related and business necessity" criteria. In another recent case, an "old form" asking applicants "What current or past medical problems might limit your ability to do a job?" resulted in an assessment of $100,000 in punitive damages against the employer (in addition to awards of $7,500 in compensatory and $50,000 in punitive damages to the applicant on his failure to hire claim). EEOC v. Wal-Mart Stores, Inc., 6 AD Cases (BNA) ___, DC NMex., 95-1199 (2/21/97). In EEOC v. Chrysler Corp., 5 AD Cases (BNA) 517 (DC EMich. 1996), the Court entered a permanent injunction prohibiting the employer from following its blanket policy of refusing to hire applicants with elevated blood sugar levels. The Court's decision was based on its finding that the employer failed to prove that it performed individualized assessments of applicants as ADA requires.

RECOGNITION OF ERGONOMICS

Few ADA cases have specifically recognized the relationship between ADA and ergonomics. Those which mention ergonomics do so in connection with changes by employers to make workplace facilities accessible for employees with disabilities or in connection with tools and equipment provided to enable employees with disabilities to perform the essential functions of their jobs. For example, in Vande Zande v. Wisconsin Dept. of Administration, 3 AD Cases (BNA) 1636 (7th Cir. 1995), the Court detailed changes made by an employer to accommodate an employee who used a wheelchair: modified employee's workstations to make them accessible; made restrooms and lunchrooms accessible by lowering cabinets, sinks and cooking facilities; allowed the employee to take leave with pay as provided in its leave policy; provided the employee with a laptop computer so she could work at home for short periods. The Court found that the employer was not required to make other changes requested by the employee: provide her additional time off with pay without charging it to her leave allowance; provide her a desktop computer so she could work at home full-time; and make all restrooms and lunchrooms fully accessible to her. The Court determined that the accommodations made by the employer were reasonable but the additional requests by the employee were not reasonable, and held that an employer, even if large or wealthy, is not required to expend "enormous sums in order to bring about a trivial improvement" in the life or working conditions of an employee.

Similarly, in Wernick v. Federal Reserve Bank, 5 AD Cases (BNA) 1345 (2nd Cir. 1996), the Court found that ergonomic changes (chair, work area and equipment designed to facilitate her work performance) satisfied ADA's reasonable accommodation requirements. The employee in Wernick had suffered a back injury and, when she returned to work, requested assignment to a new supervisor, claiming that working for her present supervisor caused stress which aggravated her back problems. The Court held that the employer was not required to provide the employee with the accommodation she requested.

Recently, however, a Court decided that an employee was entitled to a trial on his claim that his employer's failure to consistently accommodate his disability violated ADA. Best v. Shell Oil Co., 6 AD Cases (BNA) ___, 7th Cir. No. 96-1181 (2/27/97). The employee injured his knee in a workplace accident. He experienced pain to the injured knee only when he drove trucks equipped with a certain type of seat and clutch; when he drove other trucks (which was most of the time), he had no physical problems. The Court found that the employer's failure to assign him only to trucks he could drive without pain raised an issue of reasonable accommodation through ergonomic changes.

SUMMARY

ADA requires an individualized assessment of each employee, each applicant and each job to determine the essential functions of the job, the employee's ability to perform the essential functions of the job, and the reasonable accommodations, if any, required to enable the employee to perform those essential functions. In making these case by case assessments, the employer and the employee are required to cooperate in an interactive process to suggest and analyze their needs and potential accommodations. While not all accommodations requested by employees are deemed reasonable or necessary, courts focus on the effectiveness of changes, including ergonomic changes, made by employers in attempting to accommodate employees with disabilities. Medical inquiries and examinations may be required or performed by employers, but only under limited circumstances and only if the medical information obtained by the employer is maintained in a confidential manner. Case management and ergonomics can, and often do, assist employers in complying with these requirements of ADA.