On 2/1/17, a federal court judge granted summary judgment on an ADA discrimination claim to a school who believed that a groundskeeper posed a “direct threat” of substantial harm to himself because he had trouble bending over and walking. The case is noteworthy because the employee himself had not been injured, and had not report that he had a disabling medical condition.  Rather, the employee contended that he posed no risk of danger because he had performed the job for years without injury.  The court disagreed stating that just because no injury had yet occurred did not mean that there was no risk of future injury. The case is McLane v. School City of Mishawaka (N.D. Indiana 2/1/17).

Fitness for Duty policyThe school had a policy stating that it could require an employee to undergo a fitness for duty exam when a concern was raised regarding an employee’s ability to perform his or her job duties in a safe manner. Here, the employee’s supervisor had observed (1) the employee having difficulty bending over and picking items up, (2) the employee did not appear to be able to walk more than ten or fifteen feet and (3) he “looked like he was in pain when trying to go about normal activity.” As a result, the school required him to undergo a fitness for duty exam. 

Independent Fitness for Duty exam. A physician who was affiliated with an occupational services company but not affiliated with the school performed the exam and found that the employee was fit for duty but requested that a job site functional capacity evaluation be performed. The purpose of the Job Site analysis was to observe the employee and gather information to determine whether or not he could perform the essential functions of his job. The physical therapist (again not affiliated with the school) who performed the Job Site analysis concluded that the employee was unsteady, had difficulty walking, was unable to bend properly, and could not crawl because his knees had limited function.  The employee also “admitted that he could not keep his legs straight while lifting, which caused [the employee] to use unsafe body mechanics while lifting.”  The employee also admitted he could not stoop, bend his knees or get down in a crouch. The physical therapist concluded that the employee would be at risk for injury, including a potential ruptured disk in his back, if he continued performing his essential job functions, even with the use of assistive equipment such as a cart or tractor. Based upon the findings of the Job Site analysis, the school transferred the employee to a hall monitor position. The employee failed to report for this new position and the school terminated his employment.

No evidence of pretextThe employee argued that the school had created the job description for the purpose of firing him. However, the court noted that employers are entitled to “substantial deference” in the determination of essential job functions, and that courts should not interfere with the employer’s determination unless there is evidence of pretext. Here the court rejected the employee’s argument of pretext noting that the independent physical therapist had concluded that the essential functions of the job included activities that the employee could not do, such as lifting in a safe manner. 

Lessons for Employers? This case suggests that employers may require a fitness for duty exam when they observe an employee engaged in actions that present a risk of substantial injury – even if the employee has not identified a medical issue or asked for an accommodation. Employers would be well-advised to have a written fitness for duty policy (as this employer did) and to hire independent physicians and vocational resources to perform the fitness for duty exam (again, as this employer did). It also helped this employer that it had a written job description that referred to the duties in question. And, this employer did not fire the employee. Rather, it transferred him to a job that did not pose a risk of danger. Another example of an employer who acted fairly and thoughtfully winning an ADA case.