Tag Archives: disability

Not Every Job Restriction Pertains To An Essential Function

Earlier this month the Sixth Circuit U.S. Court of Appeals (the circuit that includes Tennessee) affirmed a jury’s verdict that Bemis Company discriminated against a former employee based on his disability when it terminated him based on his doctor’s restrictions.  The Plaintiff, Tony Gunter, was a press operator with the primary job duty of pressing graphics onto Huggies diapers.  Gunter injured his shoulder on the job.  The shoulder injury resulted in Gunter’s doctor imposing lifting restrictions on him.  Bemis terminated Gunter’s employment on the basis that his lifting restriction prevented him from performing the essential functions of his job.

At trial several witnesses testified that even with the lifting restriction Gunter could perform the essential functions of his press operator position.  In fact, Gunter’s co-worker’s testified that they regularly helped one another lift heavy objects, and thus the lifting restrictions would not impact Gunter’s ability to do his job.

Based on this testimony and other evidence the jury found that Bemis discriminated against Gunter based on his disability when it terminated his employment.  The jury awarded Gunter almost $600,000 in damages, but the Court of Appeals held that the front pay portion of that award needed to be recalculated.

Employers must remember that if an employment decision is based on an employee’s job restrictions,  those restrictions must prevent the employee from performing the essential functions of his or her job, even with a reasonable accommodation.  And remember, just because the job description says it is an essential function, that may not be the case.  Review the job description and make sure that the actual job duties are consistent with it before you make the decision.  The failure to do so could prove very costly.

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Is Regular Attendance Always An Essential Job Function?

Most of you just read the headline and probably answered “of course”.  But a recent decision by the Sixth Circuit Court of Appeals ( the federal court of appeals that has jurisdiction over Tennessee federal courts), shows that the answer is not always that certain.

In Hostettler v. College of Wooster the plaintiff, a full time HR Generalist, was seeking a part-time work schedule following the birth of her child.  When the plaintiff was unable to return to work on a full-time basis because she was recovering from post-partum depression and separation anxiety, the college fired her.  The plaintiff sued under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act and Ohio statutory law.  The district court granted summary judgment to the college on all of Plaintiff’s claims.  The district court decided that Hostettler could not make out a prima facie case under the ADA because she could not meet an essential function of the position, full time work, and was thus not qualified for the job.

On appeal the Sixth Circuit reversed the decision because it found that genuine factual disputes existed on material issues in the case.  Several facts were key to the Sixth Circuit’s decision.  One of Hostettler’s colleagues stated in a sworn declaration that she believed that Ms. Hostettler could do much of her work from home and that working from home was a common practice in the department.  The colleague also stated that Ms. Hostettler was replying to work emails in the evenings when she was working a modified schedule prior to her termination.  The colleague further stated that while Ms. Hostettler was on a modified schedule she was not aware of any assignments that Ms. Hostettler failed to complete.

Another key fact was that on Ms. Hostettler’s performance evaluation that was completed shortly before she was fired she received no negative feedback.  To the contrary, the college stated that “Heidi is a great colleague and welcome addition to the HR team!”.  Given these facts, and others, the Sixth Circuit determined that summary judgment was not appropriate.

Importantly, the Sixth Circuit did not hold that regular attendance is not an essential job function.  In fact, in the 2015 decision of EEOC v. Ford Motor Company the Sixth Circuit reaffirmed that regular attendance often is an essential function of the job.  But in Ms. Hostettler’s case there were factual disputes that precluded dismissing the case without a trial.

There are a few significant employer take always from this decision.  The college focused heavily on the fact that the job description stated that regular attendance is an essential job function.  But the facts of the case were inconsistent with that statement.  So make sure your job descriptions are accurate.  Additionally, just because your job description says one thing, if the facts pertaining to that employee are inconsistent with the job description, don’t let the job description drive your decision.

Finally, the plaintiff was fired after receiving a glowing performance evaluation.  Anytime you look to fire an employee for performance based reasons make sure you review their entire personnel file, including the most recent performance evaluation, before going forward with that decision.  If the performance evaluation is favorable, or other recent documents indicate acceptable or good job performance, reconsider whether termination is appropriate.  And as always, when in doubt, call your lawyer.

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Christian Care Center of Johnson City to Pay $90,000 to Settle ADA Case Filed by EEOC

The EEOC has the power to, and will,  sue employers who it believes have violated the laws it enforces.  It recently sued the Christian Care Center of Johnson City, Tennessee for disability discrimination based on the Center’s firing of an HIV positive LPN.  The case settled for $90,ooo.  You can read more about it in the EEOC Press Release which is linked below.


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Does the FMLA Provide Leave To Care For A Child That Becomes Disabled As An Adult?

The FMLA entitles eligible employees to take a total of 12 workweeks of leave during any 12 month period to care for a son or daughter with a serious health condition.  Son or daughter is defined as any biological, adopted, foster or stepchild, legal ward, or a child of a person standing in loco parentis who is: (1) under 18 years of age; and (2) 18 years of age or older and incapable of self-care because of a mental or physical disability.  Does the FMLA apply if the child becomes disabled and incapable of self care after he or she turned 18?

While the FMLA and its regulations are silent on this issue the US Department of Labor’s Wage and Hour Division (WHD)  clarifed it in a recent opinion.  The WHD, relying on the legislative history of the FMLA, opined that the age that the child becomes disabled is irrelevant in determining whether the employee is entitled to leave to care for the child.  As a result, employers must grant FMLA leave to eligible employees who need to care for a disabled adult child, regardless of when the child becomes disabled.

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