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Court Holds that Employee With Restrictions Who Was Terminated Should Have Chance to Prove Reasonable Accommodations Could Have Been Made by Employer

By on April 2, 2015 in ADA with 1 Comment

Many employers have 100% healed policies that can redound to their detriment in court.  That was the situation in Kauffman v. Petersen Health Care, VII, LLC, 769 F.3d 958 (7th Cir. 2014).

Debra Kauffman worked as one of two hairdressers at Mason Point Nursing Home in central Illinois.  On Mondays and Tuesdays, she would wheel residents to the nursing home’s beauty shop and then wheel them back after their hair was done.  On the other days of her four-day workweek, the residents would get themselves to the shop.  The average weight of the residents was 120 pounds, but some were much heavier.

In late December 2010, Kauffman suffered a uterine prolapse cystocele condition and had an operation to remove the uterus and reconstruct the bladder with a mesh lining installed in her abdomen.  She returned to work eight weeks after the surgery with a restriction against pushing more than 20 pounds.  Her doctor later raised that to 50 pounds.  The doctor did not know that Kauffman pushed residents in wheelchairs initially.  He thought she just did hairdressing work.  There was some confusion at trial as to whether her doctor completely removed the weight restrictions but the doctor continued to caution against pushing wheelchairs.

Kauffman asked the nursing home administrator whether she could be relieved of the need to push residents in wheelchairs, but the administrator declined, stating: “we just don’t allow people to work with restrictions; and you have a restriction on here . . .  As long as you’ve got the restriction we can’t employ you.”  He added that it would create a hardship if someone else had to transport the patients.

The district court judge ruled for the nursing home, but plaintiff appealed to the Seventh Circuit Court of Appeals.  The circuit court criticized the ruling below: “More important, it’s not true that the fact that a restriction is permanent automatically excuses the employer from making any attempt to accommodate it.  Otherwise, an amputee would never have a right to an accommodation, even if it involved nothing more costly to the employer than lowering the sink in the employees’ bathroom.”

The court also commented that the district court failed to appreciate the need  for an interactive dialogue.

A further problem with the district judge’s decision is his ignoring the requirement that when an employee asks for an accommodation because of a disability, ‘the employer must engage with the employee in an ‘interactive process’ to determine the appropriate accommodation under the circumstances.

The court noted that the EEOC does not approve 100% healed policies.  The opinion focused on the obligation of the employer to ask plaintiff how much of her time at work is spent pushing wheelchairs.  A concurring opinion in the case reminded the court that the employer’s judgment is given great weight on what is and is not an essential job function.  The concurring opinion suggested that on retrial, the trial court should focus on whether transporting residents is an essential job function. The concurring opinion asked whether there was any evidence that a battery-operated attendant-controlled wheelchair would allow someone with Kauffman’s condition to safely perform this function.

In reversing the district court the Seventh Circuit remanded the case for a new trial to determine what are the essential functions of Kauffman’s job as a hairdresser.  The case is helpful to practitioners because it illustrates many common scenarios that happen in the workplace:  employees are often returned to work with permanent restrictions, and some employers make the mistake of saying an employee cannot return to work with permanent restrictions while neglecting to engage in the interactive dialogue.

An employer should engage in a dialogue with the employee about his or her abilities and any requests for accommodations.  Ask the employee how he or she proposes to perform the essential functions of the job.  Avoid any comment such as “you cannot work here with restrictions,” or “we don’t allow permanent restrictions.”  These kinds of comments may land an employer in court.



About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


There is 1 Brilliant Comment

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  1. dan miller says:

    John Great Post
    This case raises the interactive process under the ADA according to EEOC guidelines as mentioned in my most recent article. Although this is not a work comp case the principle is the same. See: EEOC An unlikely friend on work comp.

    Thanks for posting!

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