The Americans with Disabilities Act bars employers from firing someone because they have a disability. It also requires employers to provide workplace accommodations to otherwise “qualified” individuals with actual disabilities unless going so would create an undue hardship. Someone who is “qualified” can perform the job’s essential functions with or without an accommodation.
Put another way, if the employee can’t do the job with or without help, then the ADA doesn’t protect them – as one employee recently found out the hard way.
The case I read last night involved a laborer with a back injury who had a 25-pound lifting restriction following several years of being able to handle the heavy lifting requirements of the job.
After his cervical surgery, the plaintiff emailed the company president and asked for light duty and lifting restrictions for six months. The company never had any light-duty laborer positions – for good reason because the laborer job required lots of heavy lifting. So, the president declined the request.
Meanwhile, the company learned that one of its installations had nearly failed during a rock slide. Following an investigation, the company determined that the plaintiff had used poorly grouted nails on the installation. So, it fired him.
And he sued for violation of the ADA.
Now, remember that the ADA only protects qualified individuals – people who can perform the essential functions of their jobs with or without accommodation. Employers need not relax, reassign, or eliminate essential functions.
Here, the court had to determine whether a 25-pound lifting requirement was part and parcel with being a laborer. General courts consider various legal factors such as a written job description, the amount of time spent performing the function, the consequences of not requiring someone to perform a function, and the work experience of past and current individuals in the role.
Well, there was no job description for the plaintiff’s position – at least not until after he was fired. (Curious timing, yes?)
But the court nonetheless concluded that a laborer had to be able to lift 25 pounds to do their job.
The president provided a supporting affidavit. Other laborers confirmed that they regularly lifted heavy items while working. Even the plaintiff testified that lifting “50 pounds” is “pretty much standard in the industry.” Heck, the plaintiff’s union representative told him he had “no leg to stand on” to seek to return as a laborer with a 25-pound lifting restriction.
Since the plaintiff was not qualified, the ADA did not protect him. Case dismissed.
Generally, the onus is on the employee with a disability to propose a reasonable accommodation. Once that happens, the employer must discuss the matter with the employee with good faith to discern whether one exists that enables the individual to perform the essential functions of the job.
A job description with a list of essential job functions is a key part of driving that conversation. Bonus points if you’ve previously shared that job description with your workers. Even better if they have acknowledged/signed off on it.
Don’t wait until after the accommodation request — let alone the subsequent lawsuit — to develop one.