UPDATE: In an opinion issued January 11, 2023, the court granted summary judgment to the employer on the EEOC’s “regarded-as-disabled” claim. According to the court, the EEOC did not timely raise that issue. As a result, the employer has won, subject to the EEOC’s right to appeal.
At one time or another, one of your employees may have had a serious health condition resulting in multiple absences, followed by a release to return to work with restrictions that you believed prevented the employee from performing the essential functions of the job.
Common sense might lead you to believe that you would be justified in asking for a fitness-for-duty certification before allowing that employee to return to work and terminating the employee for failing to provide such a certification. If that’s what you think, then think again. Your request might be evidence that you regarded the employee as being disabled. That is exactly what happened in a recent case in a federal court in Alabama.
EEOC v. Allstate Beverage
In EEOC v. Allstate Beverage, the Equal Employment Opportunity Commission claimed that the employer – an alcoholic beverage distributor – failed to accommodate an employee with a disability, and then terminated him either because of his disability, because of his “record” of a disability, or because it regarded him as having a disability, all in violation of the Americans with Disabilities Act. The court granted summary judgment to the employer on all claims except one: the claim that the employee, Jimmy Freeman, was terminated because he was “regarded as” having a disability will go to a jury.
Mr. Freeman, a point-of-sale warehouse administrator for Allstate, had been hospitalized for three days due to a pulmonary embolism and deep vein thrombosis. When he was released to return to work, it was with restrictions against lifting more than 40 pounds or pushing carts loaded with 100 pounds of materials. Allstate believed the essential functions of Mr. Freeman’s job required him to perform these activities, so it refused to let him return to work with those restrictions. Eventually, Allstate required him to provide a fitness-for-duty certification and terminated him when he failed to submit it.
No actual disability
As for the EEOC’s claim that Allstate failed to make reasonable accommodations for Mr. Freeman, the court granted summary judgment to the company because even the EEOC’s vocational expert said that his restrictions did not substantially limit him in the major life activity of working “compared to the average working person in the general population.” In other words, the average working person is not required to lift 40 pounds or push carts with 100 pounds of materials.
Significantly, Mr. Freeman himself testified that he did not believe he needed his physician’s restrictions by the time that his employment was terminated.
The court also found that there wasn’t enough evidence that Mr. Freeman was “substantially limited” in the “major life activities” of breathing or sleeping during the relevant time period. Because the EEOC failed to show that Mr. Freeman was substantially limited in any major life activity, the court concluded that he was not disabled and that the company was not obligated to provide him with an accommodation.
Finally, the court found that there wasn’t enough evidence to show that Mr. Freeman was discriminated against because of his “record” of a disability.
“Regarded as” claim will go to a jury
The “regarded as” termination claim was another story. The court first recognized that even if Mr. Freeman was not disabled, he could pursue a claim that Allstate terminated him because it regarded (or perceived) him as being disabled.
Unlike an ADA claim based on an actual disability, a “regarded as” claim requires evidence that the employee could perform the essential functions of his job with no accommodations because employers do not have any duty to accommodate perceived disabilities.
The court denied Allstate’s motion for summary judgment on this claim. As for Mr. Freeman’s ability to perform the essential functions of his job without an accommodation, the court found that there were disputed issues of fact as to whether lifting 40 pounds or pushing carts with a 100 pounds of materials were “essential” to the performance of POS warehouse administrator job.
As for whether Allstate regarded Mr. Freeman as disabled, the court found disputed issues of fact because
- An Allstate manager visited him in the hospital to provide him with paperwork for leave under the Family and Medical Leave Act.
- Allstate sent him letters referencing his “serious health conditions” and informing him that he could not return to work because his physician had not yet certified that he was “able to safely perform the essential functions of his job.”
- Allstate sent him a letter informing him that he would be terminated unless he provided a fitness-for-duty certification confirming his ability to perform the essential functions of his job.
- Allstate then terminated him when he failed to provide the certification.
This was enough for the court to find that a jury should decide whether Mr. Freeman was discharged because he was “regarded as” having a disability.
Discussion
Although employers can require fitness-for-duty examinations in certain situations, care must be taken to not create evidence supporting a “regarded as” claim. In this case, the employer should have conducted a self-critical analysis of the essential functions of the employee’s job before it required the examination.
If lifting 40 pounds or pushing carts with 100 pounds of materials were essential functions, the outcome may have been different. But, because the evidence was disputed, the EEOC was able to argue that Mr. Freeman could perform the essential functions of his job without an accommodation and was fired because, in the employer’s own words, it perceived him as having “serious health conditions” that made it “unsafe for him to perform his job.”
The lesson for employers is this: Before requiring a fitness-for-duty examination, make sure that it is job-related and consistent with business necessity. At a minimum, make sure that it relates to the employee’s ability to perform functions that you can prove are essential to the performance of the employee’s job.