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Thursday, February 9, 2017

ADA Done Right

By Thomas Eden

Charles McLane worked primarily as a groundskeeper for the Mishawaka City School in Indiana during the summer and snow removal in the winter. Where he worked consisted of two baseball diamonds, two softball diamonds, a soccer field, and tennis courts and related facilities such as restrooms and a press box. McLane’s job duties including maintaining the baseball and softball diamonds, mowing the grass, edging, preparing for ballgames, and maintaining the facilities by cleaning the bathrooms, taking out the trash, and general clean up. The School’s job description for the groundskeeper position also sets forth as essential job functions the ability to "bend, stoop, climb a ladder, stand for extended time periods and lift up to one hundred (100) pounds." A Work Activity Assessment of the job was performed by a physical therapist, who obtained the information for the essential functions of the groundskeeper position through his discussions with McLane, his observations of McLane, and by looking at the duties performed by McLane.

McLane's supervisor later observed that at times McLane was doing his job but that other times it appeared that McLane was having difficulty bending over and picking items up, was not able to walk consistently nor could he walk more than ten or fifteen feet. He noted that McLane had difficulty with other tasks, such as cleaning bathrooms (due to the required bending) and cleaning bleachers, and generally noted that McLane looked like he was in pain when trying to go about normal activity. He expressed concern to the School’s Legal Counsel that he did not wish to see McLane get hurt. The School decided that it would exercise its right to have McLane undergo a fit for duty exam. According to School policy, a fit for duty exam is appropriate when a concern is raised regarding an employee's ability to perform his or her job related functions in a safe manner. As a result of the exam, the Doctor found McLane fit for duty but requested that a job site functional capacity evaluation be performed by a licensed physical therapist. His findings were that McLane was unsteady, had difficulty walking, could not walk frequently, was unable to bend properly, could not squat, and noted that McLane's knees didn't allow him to crawl or use safe body mechanics. Based on such observations, he determined that performing the above functions would put McLane at risk for injury and that McLane's physical deficits would not improve with education and instruction. McLane was transferred to a Hall Monitor Position, for which he failed to show and was fired.

Recently, the federal district judge ruled against McLane in his federal ADA case holding that difficulty bending and lifting supports an ADA “Direct Threat” Defense.

Common Sense Counsel: 5 Step Winning ADA Strategy: 1) 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; 2) Employers would be well-advised to have a written fitness for duty policy; 3) hire an independent physician and vocational resources to perform the fitness for duty exam; 4) have an ADA compliant written job description; and 5) transfer the employee to a job that did not pose a risk of danger, rather than fire them. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com