Editor’s Note – Mark Lies, II, is a partner in the Chicago, IL, law firm of Seyfarth, Shaw, Fairweather and Geraldson, who specializes in labor and employment law as well as occupational safety and health. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
The U.S. Supreme Court recently issued a decision under the Americans with Disabilities Act (ADA) requiring the use of a golf cart as an accommodation on the Professional Golf Association (PGA) Tour and is now poised to decide whether the ADA protects carpal tunnel syndrome and tendinitis. This article will discuss the dilemma that employers are in when an employee claims that he/she has a “disability” and is entitled to an “accommodation.”
Disabilities are Protected
As most employers are aware, the ADA protects qualified individuals with a disability who are able to perform the essential functions of a job, with or without an accommodation, from discrimination. What constitutes a “disability” under the ADA has been the source of significant litigation. According to the majority of decisions, the employer must make an individualized, case-by-case fact-specific inquiry concerning the employee’s claimed physical, mental, or emotional impairment to determine whether such impairment rises to the level of a protected “disability” under the law. If so, the employer may have a duty to provide an accommodation to the employee.
Is it a Disability?
In making its determination, the employer must consider the nature of the employee’s impairment and its impact upon the employee’s ability to perform major life activities (e.g., working, walking, seeing, breathing, etc.). In making the latter determination, the employer is required to consider how the employee’s impairment of this life activity negatively impacts the employee compared to the ability to perform the same major life activity as compared to an average individual in the community. For example, if the employee has an impairment that limits his/her ability to walk a mile in a certain period of time, but the average person in the community walks at about the same pace, there might be no “disability.”
Can Impairment be Corrected?
In addition, in determining whether the impairment constitutes a disability, the employer is entitled to consider whether corrective or assistance devices (e.g., eyeglasses for reduced visual acuity) or mitigating conditions (e.g., medications for high blood pressure) result in substantially reducing or eliminating the affects of the impairment, then the employee may not have a protected disability. If, however, the employee is substantially impaired compared to the average person in the community or the impairment cannot be substantially corrected or eliminated with devices or medication, then the employee may be considered “disabled.” Once the employee is considered disabled, the employer is then faced with the issue of whether there is an accommodation available, and if so, whether it is an undue hardship to require the employer to provide such an accommodation.
Golf Cart as an Accommodation
After the Memorial Day weekend, the U.S. Supreme Court issued its decision involving a duty to accommodate involving Casey Martin, a professional golfer on the PGA Tour. Despite arguments from the PGA that the physical exertion and the impact on a golfer of walking the entire 18 holes of a round of golf was a fundamental competitive aspect of the game, the Court held that Casey Martin, who has an admitted severe circulatory and neuromuscular leg condition, had a disability under the ADA which entitled him to the “accommodation” of being able to utilize a golf cart instead of walking. Thus, the Court disagreed with the PGA that allowing the use of the golf cart would fundamentally alter the competitive conditions of the game. While Casey Martin is no doubt a sympathetic figure, this decision opens the door to other court decisions altering or modifying the rules of organized sports and many other activities (including the functions of many jobs) as a form of an accommodation for a disabled employee.
Repetitive Manual Jobs may be Affected
On April 16, 2001, the Supreme Court agreed to hear another high-profile ADA case that will have potentially far reaching impacts on employers in all jobs where employees engage in tasks, including manual assembly line jobs, manual product handling jobs, and manual building trade jobs (painting, plumbing, roofing, etc.), which require gripping of tools and repetitive work with the employee’s hands and arms extended at or above shoulder levels for extended periods of time. In Toyota Motor Mfg., Kentucky Inc. v. Williams, the Court has decided to hear whether an employee who has carpal tunnel syndrome and tendinitis is disabled under the ADA, and if so, whether the employer must accommodate the employee.
The plaintiff, Ella Williams, worked for Toyota on the automobile assembly line where she developed problems in her hands and arms. Toyota transferred her to its paint department where she was able to work without difficulty. When her job duties were increased by requiring her to wipe down one car per minute with her arms at shoulder-height or above, she again experienced muscle problems. She asked the employer to reassign her to her previous, less strenuous job duties. When Toyota refused, she filed a complaint under the ADA, claiming that she had a disability and that the employer failed to accommodate her.
The lower court established what appears to be a new standard for determining what constitutes a disability for jobs requiring repetitive work with hands and arms extended at or above the shoulder level for extended periods of time. Rather than determining whether Williams was disabled from the major life activity of working (which she was not because she could perform many other jobs which were available in the community and which do not involve repetition or work at or above the shoulder level), the lower court incredibly analogized her impairment to someone who has “missing, damaged, or deformed limbs” that prevented her from the major life activity of “performing manual tasks” (and not working). After having determined that she had such a disability, the court sent the case back to the lower court to determine whether Toyota failed to accommodate the disability by not returning the employee to her prior job. The Supreme Court has now decided to consider the case.
Golf Carts for Everyone?
Obviously, it is premature to predict how the Supreme Court will rule in the Toyota case, but its action in the PGA case is not comforting to employers. If the Court does adopt the reasoning in the Toyota case, it would require employers who have employees who complain of carpal tunnel syndrome or tendinitis while performing “manual tasks that require gripping of tools and repetitive work with hands and arms extended at or above shoulder levels for extended periods of time” to be concerned about whether the employee has a protected “disability” (even though the employee can perform many other jobs) that must be accommodated.
Compliance Guidance
Until these legal issues are resolved, employers should continue to follow certain guidelines in dealing with employees who claim impairments and who may be seeking job modifications because of them. The following recommendations should be followed:
• Do not ignore an informal employee request for assistance that may trigger employer duties under the ADA, and be aware that the employee does not have to use magic words or legal terminology to invoke the ADA;
• Train supervisors in how to identify potential requests under the ADA;
• If a request is made, respond by having an interactive discussion with the employee concerning the nature of the impairment and what assistance or accommodation the employee is seeking;
• Request documentation from the employee or his/her physician that identifies or confirms the impairment and the need for assistance or accommodation;
• Conduct an individualized inquiry into whether the employer believes that the employee has a “disability” and if necessary, consult with appropriate medical professionals and legal counsel;
• Advise the employee in a timely fashion of the employer’s decision as to whether it considers the impairment to warrant job assistance; if so, the employer has latitude to determine what such assistance may be and is not required to provide the precise assistance which the employee wants;
• Document the employer’s actions in the event that the employee is dissatisfied and claims that the ADA was violated;
• Maintain confidentiality of all medical and other private employee information received during the interactive process.
Conclusion
If the employer follows the foregoing recommendations, it can avoid being run over by an employee driving a golf cart powered by the ADA.
Labor and the Law - August 2001 Render