Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As most employers are aware, they are frequently being caught in the crossfire between conflicting requirements of various federal laws intended to protect employees in the workplace. The Hershey Chocolate USA company was recently drawn into such a conflict in its plant which produces York Peppermint Patty candies, as described in a recent federal court decision, Turner v. Hershey Chocolate USA (E.D. Pa. November 30, 2004).
Employee Claim
The employee was a worker on a candy production line. The employee developed various musculoskeletal conditions in her work and eventually underwent surgery on three different occasions. Upon her return to work, the employer initially accommodated her new work restrictions by assigning her to a “light duty position” as a shaker table inspector on a York Peppermint Patty line. As an inspector, she would be required to repeatedly reach, stretch, twist, and maneuver to remove chocolate covered and uncovered mint patties on the line.
Employer Identifies Repetitive Stress Injuries
The employer, as required by the Occupational Safety and Health Administration (OSHA) under its “General Duty” clause, which requires an employer to protect employees against recognized hazards that are likely to cause serious injury or death, conducted a job hazard analysis of all inspector job classifications to determine potential ergonomic hazards. The analysis revealed that inspectors were suffering a high incidence of ergonomic repetitive stress injuries (RSIs) to their wrists and arms while inspecting the candy on the line.
OSHA requires an employer to take reasonable steps to protect employees against recognized hazards, such as RSIs, which can include engineering controls (modification of equipment to eliminate or reduce the hazard) and work practice controls (modification of the job to reduce employee exposure, e.g., job rotation that reduces the time period of employee exposure).
The employer decided to utilize work practice controls (rotating the inspectors among several production lines every hour which would allow the inspectors to change position, alternate between sitting and standing, and use both arms) to address the RSI hazard. By so doing, the employer concluded that it was meeting its OSHA obligations.
ADA Challenge
When the employee learned that she would now have to participate in the job rotation program, she challenged the employer, claiming that she did not have to rotate since she was protected by the Americans with Disabilities Act (ADA). She brought in additional medical releases from her doctor that placed restrictions on her that would prevent her from performing the duties in the rotation.
To establish a general claim under the ADA, an employee must establish:
1. That the employee has a disability;
2. That the employee is a qualified individual; and
3. That the employee has suffered an adverse employment action because of that disability.
In this case, the employee claimed that she had a “disability,” and that she was able to perform the “essential functions” of the job of inspector if the employer “accommodated” her by exempting her from the job rotation program intended to reduce RSIs.
Court Upholds OSHA Program
The court was required to analyze the competing legal interests of job safety (OSHA) and employment discrimination (ADA) in order to resolve the dispute. In this case, the court recognized that the employer had a legal duty under OSHA to prevent workplace injuries and that the work rotation program was reasonable means to address such injuries.
Further, the work rotation program was an “essential function” of the job as defined under the ADA and as determined by the employer.
Reasoning further, the court rejected the employee’s claim that she should be exempted from this essential function as an “accommodation” of her claimed disability.
Accommodation Threatens Safety
In ruling that the employee’s claim of failure to accommodate her by exempting her from the work rotation program was unreasonable, the court resolved the competing OSHA-ADA conflict by coming down on the side of worker safety. The court recognized that the employee’s “accommodation” was unreasonable because allowing her to stay out of the work rotation would have exposed other inspectors to an increased risk of RSIs since they would now be unable to rotate as frequently (because of the employee’s accommodation). The court affirmed the principle that no employer is required to provide an accommodation that will pose a “direct threat” to the safety of the employee, or, in this case, the other inspectors.
As employers continue to grapple with expanding and competing legal obligations, they should recognize that courts will uphold reasonable safety and health policies as paramount to other legal interests (including protection against employment discrimination). Such policies, if carefully drafted and based on valid medical information, will be upheld.
Labor and the Law - June 2005 Render