Keith v. Oakland County, 2011 WL 3862329 (Eastern District of Michigan September 1, 2011), is a fascinating case containing several very important points. In this case, a deaf person trained to be a lifeguard. During the training process he received a variety of accommodations and was able to complete the training successfully. However, when he applied for an actual lifeguard job with Oakland County, he was given a conditional job offer and had to take a physical. At the physical, the doctor stopped the exam once he knew the person was deaf and said that deaf people cannot be a lifeguard. Oakland County then investigated the matter further in conjunction with consultants and decided that this particular individual could not be a lifeguard and withdrew the offer. Keith, the plaintiff, then sued alleging violation of the Americans With Disabilities Act. The key question faced by the court was whether the plaintiff was otherwise qualified for the job. That is, could the plaintiff perform the job’s essential functions with or without reasonable accommodations.

In granting summary judgment for Oakland County, the court reasoned as follows. First, the Dr. who examined the plaintiff as part of the physical subsequent to the conditional job offer messed up by not making an individual analysis of the plaintiff and just jumping to a general conclusion. Second, Oakland County did not mess up with regard to the way it followed up on the physical conducted by the Doctor because Oakland County then engaged in a very detailed analysis, including consulting with its consultants, regarding whether the plaintiff had the ability to do the essential functions of the job with or without reasonable accommodations.

Third, the court said that it was simply unreasonable to accommodate an individual by requiring an employer to hire an additional person to assist the individual in his or her job duties. Another way they said it, is that employers are not required to assign existing employees or higher new employees to either perform certain functions or perform the duties of a disabled employee’s job when that employee cannot perform those duties by virtue of his disability. It is this particular reasoning that is potentially very troublesome. It implies that an employer may well be within their rights to just make an assumption that a person with a disability cannot do a particular job. Also, the statements are more nuanced than at first they may appear. Obviously, the Americans with Disabilities Act would not require that another person be the person responsible for performing the applicant’s job duties. However, accommodating the applicant is not the same as performing those job duties. For example, if the applicant is still the one processing the information, making the individual calls, and executing based on that information, then the individual that is communicating the information is not performing the job duties at all rather they are just passing along the information. Another issue is whether the accommodations would be such that the applicant would be a direct threat to himself or others but this was an issue that the court did not address or deal with. One wonders if the record could have been broadened upon denial of a summary judgment motion so that the necessary facts could be brought in to see whether the accommodation where such that they were in essence enabling someone to do another person’s job or even with the accommodations the applicant would’ve been a direct threat. However, since summary judgment was granted, one it just left to wonder what future facts may have revealed.

What can we take away from this case? Three very important items. First, the mandate of the Americans with Disabilities Act to engage in individual analysis applies throughout the entire process. If Oakland County had just relied on the Dr. without doing its own independent detailed analysis, Oakland County would have been in trouble.

Second, there is a huge distinction between training for program or a job and then actually getting the job. I have seen situations whereby a program might say, for example, well since this person can’t be a lifeguard, we don’t have to accommodate them in the training to be a lifeguard. To Oakland County’s credit, they did not make this mistake. Their training was quite accessible and then when it came to the job, they reached a different conclusion.

Third, if you are an advocate for a plaintiff in this type of situation, you are going to have to be very aggressive to advocate that accommodating a person with a disability is not necessarily the same thing as hiring a person to do that person’s job. Facts are needed to establish whether the person is a conduit or whether that person is actually doing the person’s job. This is going to be critical or it could potentially lead to a situation that allow stereotypes to prevent persons with disabilities who are otherwise qualified from employment.

In tort law, there such a thing as the coming and going rule. That is, if an employee acts negligently while commuting to work or coming from work, the employer is not liable for those actions. The Internal Revenue Service has a similar rule. That is, you can’t take off your mileage when you are commuting to and from work. Would the same rule apply with respect to the duty to accommodate under the Americans With Disabilities Act?

In one of the blogs in my blogroll, I believe it was labor and employment law (not tx), there was a case whereby the Second Circuit Court of Appeals held that the duty to accommodate could expand to a person getting to and from work. In light of the rules in the first paragraph that seemed a little bit odd. Therefore, I went ahead and read that case, Nixon-tinkelman v. New York City Department of Health and mental hygiene, 434 federal appendix 17 (a decision not published in the federal reporter), but it turns out that there is little independent reasoning in that case. Basically, that case says they are relying on Lyons v. legal aid Society, 68 F.3d 1512 (second Cir. 1995). Therefore, I read the Lyons case and it is that case that we will talk about here.

In Lyons, an attorney who worked for legal aid Society of New York was severely injured upon leaving her parked car. As a result of those injuries, she underwent multiple surgeries. She was eventually able to return to work, though she had to use walking devices, wear a brace on her left knee, could not stand for extended periods, and could not climb or descend stairs without difficulty. She was simply unable to walk long distances either at one time during the course of a day and her general physical stamina was significantly less than normal. Before returning to work Lyons asked legal aid to accommodate her disability by paying for parking space near office and the courts in which she would practice. She said that she would not be able to take public transportation because such commuting require her to walk distances, climb stairs, and on occasion remain standing for extended periods of time thereby overtaxing her limited physical capabilities. Her physician provided legal aid a letter that said that the parking space was necessary to enable her to return to work. Legal aid informed her that they would not pay for parking space. Accordingly, Lyons spent $300-$520 a month (1990s dollars) representing 15 to 22% of her monthly net salary for a parking space adjacent to her office building. Legal aid claimed that it did not provide parking assistance for commuting to non-disabled employees and therefore accommodating Lyons in that way would be outside the scope of the federal disability statutes (Americans with Disabilities Act and rehabilitation act).

Legal aid’s claim about how it treats other employees with respect to parking spaces was thrown out by the court because it went beyond the face of the complaint and as such was not suitable for the basis of a dismissal for failure to state a claim. The court then proceeded to address whether reasonably accommodating a commute was reasonable under the Americans with Disabilities Act/rehabilitation act. The court turned to the legislative history which said that a qualified person with a disability seeking employment at a store located in inaccessible mall would be entitled to reasonable accommodations in helping them get to the job site. Also, the court mentioned that the EEOC in an interpretive guidance had said that required accommodations were not exclusive to those specifically listed in the statute and that accommodation might include making employer-provided transportation accessible and providing reserve parking spaces. In short, the court believed they could not throw out the suggested accommodation as a matter of law, rather it would come down to the typical ways you decide whether an accommodation is reasonable and that would be a question of fact. In sum, the court concluded that there was nothing inherently unreasonable given the legislative history and the view of agencies overseeing the federal disability statutes, to require an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work. It then became a question of whether legal aid could develop the factual record to show that the accommodation was unreasonable.

Will this case hold up? As noted above, the Second Circuit in August of this year followed this case. That said, the case seems counterintuitive in light of such things at the coming and going rule and the IRS view of commuting. Also, the legislative history mentioned by the court is capable of more than one meaning. For example, reasonably accommodating someone with respect to getting to a store in an inaccessible mall could be done in a variety of ways outside of stepping in with the commute. Also, the phrase “making employer-provided transportation accessible,” could be argued that it refers to a situation where the employer already provides transportation. Finally, “providing reserve parking spaces,” could be argued to apply to the situation where a parking lot need to have a certain number reserve parking spaces due to the architectural guidelines that must be followed. Also, the phrase, “making employer-provided transportation accessible and providing reserve parking spaces,” comes from an EEOC interpretive guidance. Such guidances do not go through the same rulemaking process and therefore, and courts have noted as such, are not given the same credibility when it comes to interpreting a statute as federal regulations would be.

In short, this is a fascinating case. It is going to take a variety of decisions from the appellate courts and perhaps a final answer from the US Supreme Court to figure out whether the duty to accommodate extends to the commute. As a result, how a particular entity reacts when faced with this situation will be an individual call with different risks associated with either decision (eg. concerns about precedent, willingness to litigate, the entities individual view about preventive law, and the jurisprudence in the controlling jurisdiction).

Are full return to work policies kosher? A full return to work policy is a policy that says you cannot come back to work unless you are 100%. It is commonly seen in workers compensation areas. I have written for years that this policy is very problematic under the Americans with Disabilities Act. But what do the cases say? A case that just came down from the Seventh Circuit on December 15, 2011 is very instructive. The case is Powers v. USF Holland Incorporated, docket number 07CV 246 (seventh Cir. December 15, 2011).

 

In this case, the plaintiff was a  long-haul truck driver who injured his back while driving his truck . Following a workers compensation leave, he successfully returned to work as a long-haul truck driver and worked without incident for two years . As the birth of his child neared, he asked to switch to being a city driver .  After the switch, he began having problems with his back due to the physical requirements of the city driver position and asked to switch back . However the collective bargaining agreement did not allow for another change within the year so the employer denied the request. The plaintiff then took a medical leave of absence and later tried to return to work as a long-haul driver presenting the employer with a medical release that limited him to road driver work and limited dock work. The employer would not allow him to return saying that it needed clarification on his medical restrictions and that he could not return to work as a truck driver  unless the employer received a medical release without restrictions.  The plaintiff then sued alleging violations of the Americans with Disabilities Act because of the 100% healed policy.

This is a case that turned on the rules that were in existence before the ADAAA went into effect . The result of which is that the court found that the plaintiff did not have a disability under those rules .  What is important for our purposes is that the court spent significant time talking about 100% healed policies and how they play out under the Americans with Disabilities Act and how they might play out under the Americans with Disabilities Act as amended . The court noted that while 100% healed policies may be problematic under the Americans with Disabilities Act and under the ADAAA, the person who is making those allegations has to be a person a disability first .  Since the plaintiff was found not to have a disability, the plaintiff did not have the ability to allege that the hundred percent healed policy violated the act .  However, the court noted that it would be a different story if the plaintiff was actually disabled .

But what if the ADAAA rules were in effect? (which they are now)  100% return to work policies, which were problematic to begin with,  are now going to be extremely difficult to be  enforced under the Americans with Disabilities Act as amended for two reasons .  First, it is now much easier to be considered a person with a disability under the Americans with Disabilities Act as amended . Second, as the court noted in this case, the ADAAA changed the definition of regarded as having a disability.   No doubt, the court was referring to the fact that under the ADAAA  all the employer needs to do to suffer liability under the act with respect to a regarded as claim is to regard a person as having a physical or mental impairment . With the advent of the ADAAA, it is no longer necessary to show that the employer regarded the employee as having a substantial limitation on a major life activity . Therefore, it logically follows that if an employer has a 100% return to work policy, they must be assuming that the employee has a physical or mental impairment or they would not be insisting on a release at all. Such an assumption would lead to the employee having the right to claim that the employer is regarding  them as having a disability under the Americans with Disabilities Act as amended.

In short, 100% return to work policies, which were never a good idea since the Americans with Disabilities Act went into effect, are certainly not to be recommended now. The only issue should be whether that particular person can perform with or without reasonable accommodations the essential functions of the job.

Finally, the Americans with Disabilities Act is such a comprehensive law and is so all-encompassing it is so critical to make sure you are receiving advice and information that is reliable. Take a look at http://www.riskandinsurance.com/story.jsp?storyId=533345049 , which I just saw today, February 14, 2012. It is accurate as far as it goes. However, for an employer to rely on it as a defense to any adverse action occurring after January 1, 2009, for the reasons stated in this particular blog entry, would be very problematic.

The first case we will talk about is Klene v. Trustees of Indiana University, 413 Fed. Appx. 919 (7th Cir. 2011). It is an unpublished decision and so before using it, you’ll want to check your rules on that as restrictions exist on how you can use unpublished decisions depending upon the jurisdiction you are in. That said, it is a very useful case for our first one. In this case, a student in the school of social work was required to complete a practicum, which included a classroom component and a semester long placement at an outside agency. After being rejected from two agencies, the student suggested that the school allow her to complete a modified practicum through that agency anyway. More specifically, the student proposed that she work from home under remote supervision of the agency and participate as a social worker at meetings unaffiliated with the agency. The school rejected that idea because it would not satisfy the essential purpose of the course. The student then tried a third agency but that agency ended the placement after a few weeks. The school then allowed her to try a fourth agency but that didn’t work out either. Subsequently, the school informed the student that she failed the course because she did not complete the placement component, which meant under the school policy that she was removed from the school of social work altogether. The student then brought suit alleging failure to accommodate her under the Americans With Disabilities Act and section 504 of the rehabilitation act. For our purposes, what is critical is that the Seventh Circuit said that the court should show great respect for the faculty’s professional judgment when it comes to genuinely academic decisions.

Thus, the question becomes what practical steps can be put in place so that a court can be convinced that the essential eligibility requirements that a school has for a particular program or activity are the result of sound professional judgment and a genuinely academic decision that should be respected.  Some of the steps might include: 1. Ensuring that the department and/or program understand what essential eligibility requirements are; 2. Ensuring that the department and/or program is responsible for developing those essential eligibility requirements; 3. Those essential eligibility requirements of the program and/or activity are then reviewed by a person knowledgeable about the Americans with Disabilities Act and its requirements; 4.  Ensuring that the essential eligibility requirements of the program and/or activity are based on what is fundamental to those programs and/or activity and are not set up in such a way as to suggest a disparate impact claim ( i.e screen out people with disabilities). 5. The person responsible for reviewing the essential eligibility requirements defers to the judgment of the faculty in that department with respect to that particular program and/or activity essential eligibility requirements. Of course, there may be some negotiation between the department or program and the person responsible for reviewing the essential eligibility requirements. 7. Once the negotiations are complete and the essential eligibility requirements are in final form, those requirments are posted generally and a copy is sent down to the school disability services office, where will serve as the basis for deciding what reasonable accommodations are possible.

In this way, the school would be showing that people with subject matter expertise were responsible for coming up with the essential eligibility requirements of the activity and/or the program  and that great care was taken in in developing those essential eligibility requirements.

 

Bill Goren

 

 

Hi everyone! I am very excited about this blog. I have been involved with the Americans With Disabilities Act as an attorney since 1990, and over the years, I have come to realize that this law is very esoteric, can be complex, and perhaps even daunting to the uninitiated. My writings have always focused on the practical so that individuals, businesses, and their attorneys can make use of the law in very practical ways. This blog is going to continue that approach. It will talk about Americans With Disabilities Act/§ 504 of the rehabilitation act matters and try to break them down into practical things so that the ADA can be managed effectively.  My intent is to cover across the titles (employment, governmental access, and accessing business entities-titles I-III of the ADA). Of course, the blog is not meant to give out specific legal advice or even specific consulting services (that would have to be subject to a separate arrangement of course).  Even so, we should be able to accomplish a great deal here by breaking down the ADA in practical ways. Finally, in addition to the compliance work that I do, I am also a professor, paralegal program coordinator, and ADA instructional coordinator (point person for ADA compliance) at South Suburban College. Therefore, it is important to note that what I write about here on this blog represents my own opinions and views and is not meant to be representative of South Suburban College.

One question that has come up is how do you subscribe to this blog. We now have the ability to subscribe to the blog. On the right-hand side, you will see various options for subscribing. Subscribing has the advantage of letting you know new things on the site without having to go to the site itself.

Hope everyone enjoys it!!

Bill Goren