When employees suffer permanent injuries, their ability to continue performing their job duties is often affected. In these situations, employers must step carefully to avoid liability for violations under the Americans with Disabilities Act (ADA). The recent case of Kauffman v. Petersen Health Care VII provides a salient example of what can go wrong.

Request denied

The plaintiff was a hairdresser at a nursing home. During two of her four workdays, she had to push residents in wheelchairs from their rooms to the beauty parlor. She performed the task without difficulty until she required a reconstructive procedure on her bladder, resulting in  her doctor advising a pushing limitation. It was unclear from the record whether this limitation was ever formally rescinded, but evidence suggested that patients who had the procedure should never push more than 50 lbs. ever again.

The nursing home’s administrator reportedly told the plaintiff that the facility didn’t allow employees to work under restrictions. He also denied the plaintiff’s request for an accommodation of having other employees push the wheelchairs. The administrator stated that it would be an undue hardship for the facility to hire someone merely to transport residents to the beauty parlor.

Before quitting, however, the plaintiff was briefly accom- modated by her colleagues. And even for a limited time after the plaintiff quit, staff members continued to help the other hairdresser transport residents to the beauty parlor.

Trial required

The district court granted summary judgment in favor of the nursing home, and the plaintiff appealed. But the U.S. Court of Appeals for the Seventh Circuit reversed, finding that the record on whether pushing the residents was an “essential function” of being a hairdresser was unresolved. The nursing home argued that wheeling resi- dents occupied 60% to 65% of the plaintiff’s time, while the plaintiff believed that doing so accounted for only 9% of her time — or less than two hours per week.

The court held that specifying the amount of time she spent transporting the residents was determinative as to whether it was an essential function. In addition, the Seventh Circuit found that there was a question as to whether her inability to wheel could reasonably be accommodated by assistance from other staff, because it seemed to have temporarily worked for the other hairdresser after the plaintiff quit.

Assuming that the plaintiff’s estimate of her transport time was accurate, the demand on other employees’ time, divided over the rest of the staff, would be minimal. Thus, the Seventh Circuit ultimately held that a trial was required to assess the accuracy of the plaintiff’s estimate.

The value of time: A precursor to Kauffman

An interesting precursor to Kauffman v. Petersen Health Care VII (see main article) was the 2001 case of Basith v. Cook County. Here, a pharmacy technician in a county hospital, who had sustained knee and leg injuries, also sued his employer for discriminating against him in violation of the Americans with Disabilities Act (ADA).

When hired, the plaintiff was assigned to the “clean air” room to perform tasks such as preparing intravenous solutions and delivering and stocking medications. His employment was interrupted several times by various injuries, eventually resulting in permanent restrictions on walking, bending and lifting. The hospital offered the plaintiff a new position in a different room, but he believed that was an insufficient accommodation. He was then offered a different position in the clean air room but was still unsatisfied because he wasn’t offered an opportunity to cover overtime shifts. The hospital countered that the overtime shifts required employees to deliver and stock medications.

The district court granted summary judgment in the employer’s favor, concluding that the plaintiff was unable to perform the essential functions of his job (such as delivery and stocking) and, therefore, wasn’t a qualified individual with a disability. The employee appealed, claiming that he was qualified and the hospital had failed to provide him with a reasonable accommodation.

The U.S. Court of Appeals for the Seventh Circuit affirmed. The appellate court held that, even though delivery and stocking took only a small amount of the employee’s time, the time spent on a function was only one factor in determining a position’s essential functions. The court stated that “an essential function need not encompass the majority of an employee’s time, or even a significant quantity of time, to be essential.” This was because someone — even if not the plaintiff — would have to devote time to the essential function, which could be an undue hardship on the hospital.

Explanation needed

The court further held that the administrator’s alleged statement that they don’t allow people with restrictions to work could be found to be evidence of disability-based discrimination. What’s more, the Seventh Circuit found that the nursing home failed to explain why:

  • Other employees couldn’t have helped the plaintiff with resident transport, and
  • They hadn’t participated in an interactive process to locate another alternative.

Therefore, a trial was necessary to determine whether a reasonable accommodation was available. The court stated that, if at trial it was determined that the only accommodation needed was to have other staff provide transport a couple of hours weekly, the nursing home would have a hard time proving that such an accommodation was an undue hardship.

Discuss, don’t deny

This case demonstrates the need to engage in an interactive process with employees once you’re aware of a disability. Never flatly deny an accommodation because the disability in question is permanent. Rather, discuss — exhaustively, if necessary — all possible accommodations.