March 09, 2021
Courts Consider Who’s an ADA-Qualified Individual
Agreed. An employee cannot successfully perform the job if the employer does not provide the tools and resources needed to get the job done. But getting the job done is a task for which the employee must also be qualified. A number of headlines recently caught my attention. These are cases in which a judge or court found in favor of the employer after considering an employee’s claim of discrimination or failure to provide reasonable accommodation under the Americans with Disabilities Act (ADA). If you are a regular reader, you know I usually do not share stories that have a positive outcome for the employer. But here I go.
One case comes from the 4th Circuit (covering MD, VA, WV, NC, and SC). Due to a deformation of her foot, the employee could not wear steel-toed shoes that were a safety requirement in her job. When she and her employer could not agree on any reasonable accommodation, she was fired. She lost in trial court and appealed. The 4th Circuit court held, that the employee’s “inability to comply with the steel-toed shoe requirement thus means that she is not a ‘qualified individual’ protected by the ADA.”
In another case, the 7th Circuit (covering IL, IN, and WI) found that an employee who was fired after she could not return to work following six months of leave and needed at least two more months off from work was not a qualified individual under the ADA. “Inability to work for a multi-month period removes a person from the class protected by the ADA.”
Of course, these cases are not as cut-and-dried as I describe above. Some courts have considered similar fact patterns with opposite outcomes. In these two cases, the courts considered several factors that likely weighed in the employers’ favor.
In the first case:
- The employer placed the employee on a leave of absence for more than one year and continued to work with the employee to find a reasonable accommodation.
- The employee declined the employer’s offer to “substantially” subsidize custom-made shoes.
- The employer looked for other vacant positions for which she might qualify and could be placed or transferred. After none of those efforts were successful, the employee was fired.
In the second case:
- The employee’s doctor found her unable to perform “any and all” job duties, defeating her argument that the employer failed to assign her to another job or provide a reasonable accommodation.
- The employee applied for and received long-term disability benefits and SSDI, in which she attested to her multiple, disabling conditions.
Before you take an adverse employment action with regard to an employee who needs extended medical leave or is returning to work with limitations, talk to your company’s HR representative or employment counsel. These situations often involved much more than just ADA considerations such as paid and unpaid leave under the FMLA, state and local leave laws – not to mention your own policy and past practice – some of which were also considered by these courts.