In a previous blog entry, I discussed how a company could do an excellent job of defending litigation over what are essential functions of the job. This particular blog entry deals with the opposite scenario, where the company does not do a very good job at all of accomplishing that task. The case is Kauffman v. Peterson Healthcare VII, LLC As is my typical practice, I have divided the blog entries into categories: facts; majority opinion; concurring opinion; and takeaways. The reader is free to concentrate on any and/or all of the blog entry.

I
Facts

Plaintiff worked for a large nursing home in the town of Sullivan located in south central Illinois as a hairdresser. Two days a week she had to wheel clients in the nursing home to the salon. With respect to the other two days a week that she worked, the clients whose hair she did were able to come to the salon on their own. The residents of the nursing home weighed anywhere from 75 to 400 pounds with an average weight of 120 pounds. It usually took her no more than two or 2 1/2 minutes to wheel resident to the beauty parlor even from the farthest building, but that figure could actually be a longer figure. In December 2010, the plaintiff had a hysterectomy. As part of the operation, the bladder was reconstructed and a mesh lighting installed in her abdomen to keep the whole the bladder in place. The doctor gave her written permission to return to work eight weeks after the operation with the notation that she could not push over 20 pounds until released to do so. He later raised the limit to 50 pounds five months later. However, the doctor did not know that she was pushing wheelchairs as part of her job, rather he thought her just a hairdresser. When he found out that she had to push wheelchairs, the doctor told her that she should not be doing that because over repetitive time that would cause her mesh lining to be torn loose and she would be back in for bladder repair again. Most doctors recommend not lifting more than 50 pounds ever after the type of surgery the plaintiff had. As a result of the doctor’s warning, the plaintiff advised the nursing home’s administrator that she could not push residents in wheelchairs anymore. The response she received was that so long as she had restrictions, the nursing home would not be able to employ her. She did ask him whether someone else might be able to help with transporting residents to and from the beauty parlor for her, and the nursing home administrator testified at his deposition that it would be an undue hardship to hire somebody to transport patients to and from the beauty shop. She then quit. Until she was replaced, the remaining hairdressers received assistance from other staff in wheeling the resident to and from the beauty parlor. Further, no suggestion was made that the diversion of staff from the normal duties was costly to the nursing home or impaired the care provided to the residents.

II
Majority Opinion (Judge Posner)

1. After the plaintiff left, the nursing home accommodated the other hairdressers by having other people wheel the client to the salon until the plaintiff was replaced.

2. The court thought it possible without disrupting the operation of the nursing home, to assign one member of the staff to push the wheelchairs for the plaintiff on Mondays and another to do the same on Tuesdays.

3. The amount of time that the plaintiff spent pushing patients to the salon is not appropriate for a decision on a motion for summary judgment.

4. An element of the job is not essential if it is so small a part that it can be reassigned to other employees at a negligible cost to the employer. Whether that was the case was a genuine factual dispute not appropriate to be resolved without a trial.

5. A policy that does not allow people with restrictions to work is a violation of the ADA.

6. A 100% healed policy before being able to return to work reads the concept of reasonable accommodation completely out of the ADA and is a violation of same.

7. If a minor adjustment in the work duties of a couple of other employees would have enabled the plaintiff despite her disability to perform the essential duties of her job is a hairdresser, the nursing home’s refusal to consider making such an adjustment was unlawful.

8. If an accommodation to an employee’s disability is reasonable, the burden shifts to the employer to demonstrate that the accommodation would be an undue hardship on the operation of the employer’s business and the employer made no such demonstration.

9. The plaintiff had no alternative, considering the employer made clear that she would not be accommodated, but to quit.

10. The supervisor made a big mistake by not asking the plaintiff how much of her time at work was spent pushing wheelchairs and then on the basis of that answer as well as an investigation, coming up with a decision as to whether her disability could be accommodated without undue hardship to the nursing home.

III
Concurring Opinion (Judge Manion)

1. Question of fact existed concerning whether transporting residents to and from the beauty parlor is an essential job function for hairdressers working at this nursing home.

2. With respect to whether a task is an essential job function, the percentage of time spent on the task and the cost to the employer if the task is reassigned are not necessarily deciding factors.

3. An employer is under no obligation under the ADA to reassign essential job functions to another employee, though it must (emphasis mine) provide reasonable accommodation to allow a qualified individual with a disability to perform essential functions.

4. An employer is free to determine job responsibilities of its employees, and it should not be the court’s duty to second-guess that judgment so long as the employer’s reasons are not pretextual.

5. Once a new hairdresser was hired, the hairdressers did resume transporting clients to the hair salon.

6. The employer could have considered a battery-operated attendant controlled wheelchair that would allow the plaintiff to safely operate and traverse a short trip each way without any extra exertion that would violate her physician’s limitations. That might be an added expense, but it would meet the nursing home’s goal in rendering high quality service to the residents and allow the plaintiff to continue important relationships that she had developed over the years. A random pushing assignment from the orderly pool is a poor substitute for the resident’s special relationship with the hairdresser.

IV
Takeaways:

1. 100% healed policies are a no-no under the ADA.

2. What are the essential functions of the particular job is a fact intensive inquiry.

3. The amount of time a person spends in doing a particular task is at least some evidence of whether that particular function is essential.

4. Once an accommodation is made, there is the danger of the accommodation becoming permanent. Even so, the better part of valor is to see if that accommodation is really working for both the plaintiff and the employer and if so, not worry about the precedent. Instead, the employer should see whether the operations of the business are better off as a result of the accommodations. This is a principle called universal design. What might work for a person with disabilities might make things better for everyone.

5. A job function may also not be essential if reassigning that job function to other employee could be done at a negligible cost to the employer.

6. The burden to demonstrate undue hardship is on the employer.

7. Failure to engage in the interactive process, even if not an independent cause of action, is a big no-no. Also, an employer should take full advantage of the job accommodation network with respect to getting ideas as to how a particular essential function of the job might be accommodated (I am my no means saying that the Seventh Circuit did contact the job accommodation network, but the opinion reads as if it is something they could have done. This is something the employer should do as a matter of course. In that way, you don’t set up a situation where the court itself might be brainstorming as to possible accommodations. It also becomes easier to show that reasonable accommodations are simply not possible).

8. While the employer need not reassign essential function to another employee, the employer does have to provide reasonable accommodations to allow a qualified individual with a disability to perform the essential functions. In other words, just because a function of the job’s essential, does not mean you can forget about reasonable accommodations.

9. While it is true that an employer is free to determine job responsibilities of its employees, a court is not necessarily going to take that on face value.

10. Interacting with clients and the relationship that is formed as a result of same may be an essential function of the job.

One Response to How not to defend essential functions of the job

I recently read in the blogosphere about the case of Carlson v. City of Spokane, which can be found at http://scholar.google.com/scholar_case?case=8166038944618358366&q=carlson+v.+city+of+spokane&hl=en&as_sdt=80006 .
In this case, the issue was whether talking verbally was an essential function of the job. There are particular things worth noting about the reasoning in that case and they are:

1. The burden of establishing that a function of the job is essential lies uniquely with the employer. In order to meet that burden, the employer must produce admissible evidence that, if credited by the trier of fact, supports a finding that the function is indeed essential.

2. Essential functions of the job are not to be confused with qualification standards. Qualification standards are personal and professional attributes that may include physical, medical, and safety requirements. Personally, I find this discussion about qualification standards a bit confusing. In this particular situation, I think it helps to remember that essential functions of the job are not the same as tasks. That is, communication is critical to just about all jobs, but how that communication occurs may vary. For example, a Stephen Hawking type set up, ASL interpreter, TTY, etc.

3. Failure to engage in the interactive process on the part of a defendant is a big mistake.

4. The plaintiff should’ve been given the opportunity to perform her position with or without accommodations. To my mind, this is just another way of saying that the interactive process has to occur and that as part of the interactive process a trial run should occur to see whether the person can perform the job with or without reasonable accommodations. That process may involve fine-tuning along the way.

5. An employer should not manipulate an examination that tries to assess whether a person can perform the essential functions of the job with or without reasonable accommodations.

6. The plaintiff had presented some evidence indicating that other similarly situated city employees were treated more favorably. This is always a no no for an employer.

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