Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

Court Finds Hospital not Required to Accommodate Nurse’s Lifting Restrictions

A district court has held that a hospital does not have to accommodate a nurse whose disability causes lifting restrictions so extensive that, in effect, she cannot perform the essential functions of her position. The nurse presented a form with the following restrictions: “no lifting 0-20 pounds,” no pushing or pulling, no stretching above shoulder level. At that time, her supervisor stated that they could not accommodate those restrictions. They also told her that if the restrictions were lifted or modified, she could return to work. The court found that, even if plaintiff was “disabled” under the Act, she could not establish that she could perform the essential functions of the job with a reasonable accommodation. The court found that the hospital had proven that an emergency room nurse had to be able to lift heavy equipment; push and pull stretchers and wheelchairs; physically assist patients to chairs, etc. Noting that it was the plaintiff’s burden to prove that a reasonable accommodation existed, the court found there was no reasonable accommodation that would have allowed the plaintiff to perform the functions of an emergency room nurse.

While this case resulted in a favorable decision, employers should be aware that ADA accommodation decisions are highly fact-intensive. The outcome in each case will depend on such factors as the specific requirements of the particular position in question, the specific restrictions and limitations of the employee, and, in some cases, the availability of other positions the plaintiff can perform given the nature of those restrictions and limitations.

Reasonable Accommodation and Job Applicants
Consider this: An individual calls in response to an employer’s listing for a warehouse position. When asked to come in for a two-hour interview, the applicant mentions having “trouble sitting for long periods” due to his “bad back,” and asks if the interview can be broken up into two, one-hour visits. He also discloses that he never graduated from high school because of a “learning disability,” but states he has great prior experience.

This example raises a number of issues regarding pre-employment inquiries and the duty to provide “reasonable accommodation.” May the employer lawfully deny the applicant an interview because of his “bad back?” What about the request for a change in the interview process?

Employers must provide applicants with disabilities with reasonable accommodations to participate in the application process itself. Accommodations can take many forms, but may include: providing written materials, such as job applications or pre-hire testing, in accessible formats such as large print, giving applicants additional time to take pre-hire tests, and otherwise adjusting application policies and procedures.

An individual’s request for accommodation during the hiring process should not automatically exclude that person from consideration. Instead, the employer should determine the need for accommodations during the hiring process separately from those that may be needed to ultimately perform the job. Disability anti-discrimination laws generally prohibit employers from asking disability-related questions or conducting medical evaluations until after making contingent offers of employment. For the same reasons, employers should not ask applicants about prior workers’ compensation filings, job injuries or illnesses.

Because the applicant in the above example volunteered information about his “bad back,” the employer can ask him about his need for any accommodation in this regard if hired. However, the employer must not ask more probing questions about the disability itself—e.g., asking whether the applicant’s back issue “is related to any disease or chronic medical problem?”

Once the employer makes a contingent job offer, the employer can also require the applicant to undergo a medical examination to confirm the candidate’s ability to meet job-specific physical requirements of the position. However, medical examinations must be the final step in the application process and be consistently required for the position.

The EEOC recently stated that because an employer’s high school diploma requirement could screen out applicants with learning disabilities, an employer may not apply this standard, unless it can show that it accurately measures the ability to perform the particular job’s essential functions. Thus, in the example above, it may be difficult for the employer to lawfully disqualify the applicant for lack of a diploma, where his prior work experience and job skills are likely to be better measures of his ability to perform the warehouse job.

For more information on Reasonable Accommodation you can read my Blog article.

Settlement distributes more than $300,000 to unlawfully discharged workers

In a settlement with the National Labor Relations Board, a Texas scaffolding company has agreed to pay $323,116 in back pay, per diem and interest to 73 former employees who were discharged in violation of federal labor law. The agreement also requires the company to expunge its records of the discharges and send written notification of the action to the employees.

The settlement follows a prior Board decision that found the company unlawfully terminated the 73 employees for engaging in protected concerted activity. The Board later denied the employer’s motion for reconsideration.

Factoids

• 49% of workers survey by AFLAC said they are at least somewhat likely to look for a new job within the next 12 months. 
• 1 in 3 would like to have a new job in 2012, for Gen Y, it is 1 in 2. 
• Less than 50% of employees say they feel a strong sense of loyalty to their employers, this is a 7 year low.