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The Conflict Between Disability Leave and ADA Accommodation

DeRosa v. National Envelope Corporation (US Court of Appeals for the 2nd Circuit 08-2562-cv)

DeRosa became an employee of National Envelope in 1988 working as a customer service representative. In 2002, he suffered a traumatic injury to his right leg, which resulted in swelling, ulcers, and infections. DeRosa’s physician instructed him to limit the dependency on his right leg and, if possible, work from home. National Envelope agreed to this accommodation; however, in 2004 a new CEO decided to rescind this accommodation.

DeRosa, believing that his medical condition could not permit this change, informed his supervisor that he could not work on site. He was then terminated. DeRosa alleged that his employer encouraged him to file for Social Security Disability payments. There was a conflict on whether he had satisfactorily performed his job duties from home before his discharge. When DeRosa applied for SSDI, he stated that he “became unable to work because of my disabling condition and I am still disabled.” After DeRosa filed for ADA discrimination, the employer tried to argue that he was “estopped” from doing so because of his statement on the SSDI application. The court disagreed.

This is a scary decision for employers. In this case, the plaintiff filed for Social Security Disability benefits and was then terminated because his employer believed the employee’s claim that he was disabled from doing his job meant that there was no ADA concern. DeRosa obviously disagreed, claiming that there was an accommodation obligation in any event. The court pointed out that in a previous case, a sworn assertion that an SSDI applicant was “unable to work” could negate an element of an ADA claim unless the plaintiff offers a sufficient explanation for the apparent contradiction.

Lesson learned: A company always runs a risk when it does not engage in accommodation dialogue with any employee on leave for any reason at any time. It is unclear why the CEO rescinded the work at home accommodation; perhaps he felt this created a bad precedent or that DeRosa wasn’t performing well. If this is the case, the company should be able to defend itself against the ADA claim. This defense would be stronger if the company can document that it issued warnings and created performance plans for DeRosa before rescinding his accommodation.

-from HR That Works!

ADA and Improper Medical Inquiry

Harrison v. Benchmark Electronics Huntsville, Inc., (BEHI) 11th Circuit, No. 08-16656 (Jan. 11, 2010)

The plaintiff was a temporary employee who, at the suggestion of his supervisor, sought to be hired permanently by BEHI. In the course of the hiring process, he submitted a blood test that was positive. (Plaintiff has epilepsy and treats it with a prescription for barbiturates.) The court found that the employer had the right to ask why the test came back positive and could even ask to see the prescription. However the employer crossed the line when the Medical Review Officer probed deeper into the history and nature of epilepsy while the supervisor listened.

Harrison was not offered the job and the temporary agency was asked not to return Harrison to BEHI because there were “performance and attitude problems,” although they had never been mentioned before the drug testing.

In remanding Harrison’s case, the 11th Circuit set circuit precedent by recognizing that a plaintiff may sue an employer about an improper medical inquiry, whether or not the plaintiff is disabled. (The case began prior to the 2008 ADA amendment that explicitly classified epilepsy as a disability.) In this finding, the 11th Circuit joined the 2nd, 7th, 8th, 9th and 10th circuits, as well as the EEOC, which asserts such a right of action in its regulations.

Lesson learned: While the ADA has an exemption for pre-employment drug tests and lets employers validate tests and ask for an explanation of positive results, disability-related questions are prohibited.