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Can being overweight and health conditions related to obesity make an employee unqualified for a position? The Tenth Circuit Court of Appeals considered this question in a recent case involving a boiler plant operator who claimed that the Department of Veteran Affairs unlawfully reassigned him to a low paying position because his weight was too high.
Floyd Wilkerson worked as a boiler plant operator for the Department of Veteran Affairs (VA) at its medical care facility in Cheyenne, Wyoming. He began the position on a temporary basis in 2003. When the appointment ended that same year, he was reassigned as a permanent employee in housekeeping. Two years later, he was once again temporarily assigned as a boiler plant operator due to a shortage of employees at that position.
VA directives required all boiler plant operators to complete an annual fitness exam. Its guidelines also stated that any structural or functional limitation or defect that interferes materially with a high degree of physical activity will disqualify the individual, and set forth a number of health conditions that were exclusionary, including uncontrolled or poorly controlled insulin-dependent diabetes.
Due to an apparent oversight, the VA discovered in 2007 that Wilkerson had never completed an annual fitness exam and required him to do so. The results of Wilkersons exam revealed that he was obese (weighing 338 pounds) and had diabetes. These findings were forwarded to a doctor employed by the VA. Upon reviewing the exam results and accessing Wilkersons medical records at the VA, the doctor concluded that Wilkersons diabetes was largely uncontrolled and uncontrollable.
After speaking with the boiler room supervisors about the physical requirements of the job, he determined that Wilkerson was unable to meet the minimum requirements of the boiler plant operator position and so notified Sandra Willoughby, the HR Officer for the VA. Willoughby told Wilkerson that he failed his physical, and that he no longer met the environmental requirements for a boiler plant operator because he weighed over 330 pounds and the ladders in the boiler plant only supported up to 300 pounds. Wilkerson requested that the VA accommodate him by buying ladders that would support his weight. Although the VA considered this option, the VA dismissed it because other issues raised by the physical would still preclude him from safely working in that position. Instead, the VA reassigned Wilkerson to housekeeping, a much lower paying position.
Wilkerson filed a lawsuit against the VA Secretary, alleging that the VAs reassignment discriminated against him based on his obesity and diabetes in violation of the Rehabilitation Act of 1973, and that the VA had failed to reasonably accommodate him. The federal district court dismissed Wilkersons claims without a trial, and Wilkerson appealed that ruling to the Tenth Circuit Court of Appeals, which covers Utah as well as Wyoming.
The Tenth Circuit analyzed Wilkersons claim that he was reassigned based on his diabetes and obesity in violation of the Rehabilitation Act. To make a basic discrimination claim under this Act, Wilkerson was required to show: (1) that he is disabled; (2) that he would be otherwise qualified to participate in the program; (3) that the program is federally-funded; and (4) that the program discriminated against him. While the court assumed without deciding that Wilkerson was disabled due to his obesity and diabetes, it focused on the second prong of this test and decided that Wilkerson was unqualified for the position.
The court noted that the Rehabilitation Act and the Americans with Disabilities Act only provide relief to disabled persons who are otherwise qualified to perform the functions of their job. Employers may set physical qualification standards for an employment position. However, employers may not use qualification standards to screen out individuals with a disability unless the standard is shown to be: (1) job-related, (2) uniformly enforced, and (3) consistent with business necessity.
The court concluded that the VA satisfied all three elements for a valid physical fitness requirement. First, the court found that the VA guidelines were clearly job-related. The guidelines indicated that the boiler plant operator position required a person with agility who could lift heavy objects, go up and down ladders, and react instantly to an emergency situation.
Second, the court found that the VA guidelines requiring boiler plant operators to pass an annual physical were uniformly enforced. The court noted that the VA removed another employee who failed to meet the physical requirements and that Wilkerson made no real argument that the VA treated others in his situation differently.
Finally, the court decided that the guidelines were a business necessity. Although Wilkerson argued that 95 percent of his work was light duty and that he was only occasionally required to climb ladders, the court recognized that in an emergency he might need to act quickly and move with dispatch. The court stated that the employer may set standards not only for mundane work, but also for exceptional circumstances so long as the need to perform in an emergency is a realistic component of the job. It noted that Wilkersons supervisor had testified that failure to act quickly to shut down a malfunctioning boiler could potentially result in an explosion that would bring down the entire building. Thus, while acknowledging that Wilkerson had worked at his position for two years without incident, the court concluded that the VA could require boiler plant operators to possess the physical attributes to be able to respond appropriately in an emergency situation.
However, the court underwent a further analysis to determine whether the VA had attempted to reasonably accommodate Wilkersons disability. The court noted that before an individual can be deemed not otherwise qualified, the employer must make an effort to accommodate the employees disability. The court stated that there are two components to the reasonable accommodation analysis: (1) whether a reasonable accommodation would enable the employee to do the particular job; and (2) whether the employee could be transferred to other work which could be done with or without accommodation.
Considering these components, the court decided that there were no reasonable accommodations that would have allowed Wilkerson to remain employed in the boiler room and that his transfer to the lower paid housekeeping position was reasonable. Although Wilkerson requested that the VA buy a special ladder to accommodate his weight, the VA seriously considered that option but concluded that such an action would not relieve all of safety concerns involved with Wilkerson working in the boiler room. And, while there was no face-to-face meeting to discuss this proposed accommodation, the court found it reasonable to conclude that any further discussion would be futile and that no reasonable accommodation existed which would allow Wilkerson to safely work as a boiler operator.
Wilkerson v. Shinseki, 2010 U.S. App. LEXIS 11135 (10th Cir., June 2, 2010).
When analyzing this case, it is important to recognize what factors tipped the scales in favor of the employer and what could have tipped the scales in the other direction had circumstances been different. First, the VA had previously set forth a clear job description of the boiler plant operator position and what that position demanded physically to be performed safely. Also, the VA had clear guidelines requiring annual physical exams and describing the types of conditions that would cause a person to fail an exam. Such conditions were job-related and necessary for the operator to safely respond to foreseeable emergency situations. As the adage goes, an ounce of prevention is worth a pound of cure. In this case, a few ounces of documents helped to prevent a hefty jury trial.
It was also important that the VA had uniformly enforced the physical exam requirement. Had the VA allowed an employee who also had significant physical limitations to work as a boiler plant operator while removing Wilkerson from the position based on concerns about his obesity and diabetes, that disparity would have undermined the VAs credibility in multiple facets of the case, including the viability of its safety concerns. Also, it was important that the VA had actually considered Wilkersons request for an accommodation before deciding that it did not fully resolve the safety issues. Employers have a responsibility to engage in an interactive process with employees regarding their requests for accommodations, and those employers who simply ignore them may face some heavy consequences should litigation arise.
Q:Can we suspend a salaried employee with no pay? Any information would be greatly appreciated.
A:Yes. New federal regulations provide employers greater flexibility in suspending salaried employees for less than a full work week. Of course, employers have always been free to suspend exempt employees for the full work week, but suspensions of less than a full work week were prohibited. Under the new regulations, employers can suspend exempt employees pursuant to a written policy for violating serious workplace rules, such as rules prohibiting sexual harassment or alcohol abuse or a violation of state or federal law.
Q:I am assuming that hiring a student for a summer job qualifies for the Hiring Incentives to Restore Employment Act (HIRE Act) as long as he hasn’t worked in the last 60 days. Is that correct?
A:So long as the requirements for the HIRE Act are satisfied, there are no prohibitions on hiring students, recent college graduates or other qualified employees.
Q:I have an employee who has started calling in with depression issues. Im not sure if she is seeing a doctor yet, but I see depression as a gray area when it comes to the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Do you have any advice on how to proceed?
A:Yes, you should have a meeting with the employee in which you ask the employee if they require any accommodation in order to perform the essential functions of her job. You should also apprise the employee of her rights under the Family and Medical Leave Act and give her the notice and paperwork to complete should she need time off to deal with her depression.
Q:One of our employees was recently injured on the job. As we do with all employees who suffer work-related injuries, we required him to take a drug test, which he failed. Can an injured employee who tests positive for drugs receive workers compensation?
A:Employees who test positive for illegal substances following a workplace injury may be ineligible for workers compensation.
The Americans with Disabilities Act (ADA) is designed to place disabled employees on an equal footing with non-disabled employees. The ADA is not designed to give disabled employees an advantage over non-disabled employees, nor is it designed to require employers to create jobs just for disabled employees. These policies have a profound impact upon how courts interpret even the smallest provisions of the ADA. For instance, in a recent decision from the Tenth Circuit Court of Appeals, which covers Utah, the court relied upon these policies when it was required to define the word vacant, as used in the ADA. Read on to see how a seemingly simple word can have a major impact.
Somethings in the air
Travis Duvall had worked in Georgia Pacifics shipping department for more than seven years when GP decided to outsource its shipping department. Rather than lay off the entire shipping department at once, GP brought in a third party staffing company, Encadria, to temporarily staff the shipping department while GPs employees were transferred to other jobs.
Because of his seniority level, Duvall, who suffers from cystic fibrosis, was only eligible for a position in GPs converting department, where raw rolls of paper are machined into finished products. In February 2006, Duvall took the new position. The air in the converting department, however, is filled with paper dust, which took a severe toll on his health.
Because of his health problems, by April 2006 Duvall could no longer work in the converting department, and so GP allowed him to work two days in the shipping department. In May 2006, GP told Duvall that, because of his work restrictions, the only job he could safely perform was as a palletizer, but that he did not qualify for one of those positions because he did not have enough seniority. Thus, GP gave him the paperwork that would enable him to file a short-term disability claim.
GP did not, however, offer Duvall a position in its storeroom, an area at the paper mill where the air would not pose a health risk, even though GP was using temporary Encadria employees to fill positions at the storeroom. GP did not offer Duvall a position in the storeroom in May of 2006 because, like the shipping department, GP was considering outsourcing its storeroom.
Nevertheless, on July 31, 2006, GP offered Duvall a position in the storeroom, having finally decided against outsourcing. Duvall accepted the position and returned to work in August 2006.
What does vacant mean?
Although GP rehired Duvall, he sued the company for violating the ADA. He claimed that GP had not reasonably accommodated his disability because it had not offered him a vacant position in the storeroom in May of 2006. His lawsuit worked its way to the Tenth Circuit Court of Appeals, which ultimately decided in favor of GP.
Duvall argued that GP was obligated to immediately give him a position in the storeroom when GP decided to outsource the shipping department because he was a disabled employee and the storeroom positions were vacant. The Tenth Circuit agreed that Duvall was a disabled employee, and that the ADA requires an employer in GPs position to transfer disabled employees to vacant positions, but the court did not agree that the storeroom positions were vacant.
According to the Tenth Circuit, [i]f a disabled employee can be accommodated by reassignment to a vacant position, the employer must do more than consider the disabled employee alongside other applicants; the employer must offer the employee the vacant position. But the court recognized that there are limits to this obligation.
For instance, an employer does not have to create a new job, nor is the employer required to reassign an employee if doing so would constitute a promotion. Furthermore, an employer does not have to reassign a disabled employee if doing so would injure the employers important fundamental policies underlying legitimate business interests. And any position to which the employee might be reassigned must actually be vacant.
According to the court, the vacancy requirement defeated Duvalls claims. Duvall argued that there were vacant positions in the storeroom between May and August of 2006 because during that time period Encadria employees were hired to fill storeroom positions. GP argued, however, that the storeroom positions were not vacant because GP was considering outsourcing the storeroom and the positions were not available to any GP employee.
Unfortunately, the ADA does not define vacant, which required the court to define the word. After looking at various dictionary definitions of the word vacant, and after considering the ADAs purpose, the court decided that a position is vacant for purposes of the ADA if the position would be available for a similarly-situated non-disabled employee to apply for and obtain.
The court adopted this definition for several reasons. First, because the ADA was designed to place disabled employees on an equal footing with their non-disabled coworkers. If the definition of vacant were anything else, however, the ADA would become a statute requiring employers to prefer disabled employees like Duvall. Furthermore, if the definition of vacant were otherwise, employers faced with a situation like the one facing GP would likely have to create new positions for disabled employees, which the ADA does not require.
Thus, because from May to August of 2006 no positions in GPs storeroom were available to any GP employee, including non-disabled employees, the storeroom positions were not vacant under the ADA, and GP did not violate the ADA by not offering Duvall a storeroom position. Duvall v. Georgia-Pacific Consumer Products, L.P., 2010 U.S. App. LEXIS 11791 (10th Cir., June 9, 2010).
GPs actions toward Duvall provide a good example of how to reasonably accommodate a disabled employee. GP first offered an alternative position to Duvall when it became apparent that the shipping department was going to be outsourced. When it was clear that the new position was not appropriate for Duvall, GP allowed him to return temporarily to the shipping department and helped him obtain disability benefits. Then, once a vacant position became available, GP immediately offered it to Duvall.
This decision also provides needed clarity regarding an employers responsibilities under the ADA. The ADA does not require an employer to promote or prefer disabled employees in Duvalls position. It simply requires that all such employees be on equal footing and not be subject to job loss simply because he or she is disabled. This policy extends to the smallest portions of the ADA, even the definition of the word vacant. As summarized by the court, when a disabled employee seeks the reasonable accommodation of reassignment to a vacant position, positions within the company are vacant for the purposes of the ADA when they would be available to similarly-situated nondisabled employees to apply for and obtain.