Workers’ compensation injuries may lead to coverage under the Americans With Disabilities Act.

John H. Geaney

A recent federal case provides a good example of this. In Sutherland v. Peterson’s Oil Services Inc., Jesse Sutherland, a service technician, was injured in a work accident on Oct. 8, 2019, two months after he was hired. He tore the meniscus of his knee in two places and also damaged his patella.

He continued to work for several months while experiencing swelling and pain in his knee. He said he was working more than 40 hours per week on a regular basis. He said that he twice requested a reduction of hours to 40 hours per week because of the pain in his knee. In December 2019, Sutherland gave his supervisor a note from his doctor recommending a 30-hour workweek. The record contained no evidence that his supervisor reached out to Sutherland to reduce his hours to 30 per week. Sutherland continued to work regular days, sometimes up to nine hours per day.

Sutherland underwent knee surgery on Jan. 27, 2020, and he was given leave for the next 12 weeks. On April 8, 2020, Sutherland texted his supervisor to let the company know that he had been cleared to return to work on April 20, 2020. He said no one responded to him. He said he tried three times to get a response. Eventually, he found out that his employment had been terminated, but he never received a formal notice.  Through discovery in the case, a letter emerged that listed the date of termination as April 20, 2020, although the letter was dated May 26, 2020. That April 20 date was the same date that the plaintiff’s doctor cleared him to recommence work.

Sutherland sued and alleged violations of his rights under the ADA. Specifically, he argued that he was discriminated against and retaliated against in violation of the act. He also argued that the company failed to make a reasonable accommodation. The federal district court dismissed his case, granting summary judgment to his employer. Sutherland appealed to the Court of Appeals for the 1st Circuit.

The Court of Appeals began its analysis by noting an important fact in the case: When Sutherland was hired, he negotiated with his employer an arrangement in which he would not have to perform installation work or cover night shifts. In exchange, he promised to work Saturdays during the busy winter season.

The first issue that the Court of Appeals reviewed was whether Sutherland could make an argument that his knee injury constituted a disability under the ADA. The district court found that his knee injury was temporary in nature and not substantially limiting. The Court of Appeals did not concur with this finding. It said Congress passed the ADAAA (ADA Amendments Act) in part to broaden the interpretation of the term “major life activities.” The court commented that under the ADAAA, major life activities are not required to be of central importance to daily life. Equal Employment Opportunity Commission regulations specifically state that a temporary injury can still qualify as a disability if it is sufficiently severe.

The employer contended that Sutherland failed to support his case with adequate medical evidence. In response, the Court of Appeals cited another federal case for the proposition that medical evidence is not always needed where a lay jury "'would have no difficulty grasping the connection between a knee injury and problems in conducting major life activities such as standing, walking and bending.’”

The Court of Appeals next considered whether Sutherland could show that he was a “qualified individual with a disability.” He had to show that he could perform the essential functions of the job with or without accommodation. Peterson’s argued that Sutherland could not be deemed a qualified individual because right from the start of his employment, he was not doing installation work and night shift work. The Court of Appeals responded to this argument by noting Sutherland was hired with the specific understanding that he would not have to do installation and night shifts. In the opinion of the Court of Appeals, this initial arrangement between the parties could be interpreted by a jury to suggest that installation and night shift work were not essential job functions at all. Determining what is and what is not an essential function is not always as easy as one might think.

Concerning the anti-retaliation provision of the ADA, Sutherland argued that he was fired because he sought an accommodation of reduced hours. The Court of Appeals suggested that this argument also needed to be addressed by a jury. The court noted that there is case law standing for the proposition that an employer can be found liable for retaliation even if the underlying claim of disability remains unproven. 

The final issue in this case had to do with the essence of the ADA — namely, the obligation to make reasonable accommodations to a person with a disability. The court said Congress recognized a part-time or modified work schedule as an example of a possible reasonable accommodation. Plaintiff argued that the company’s employee handbook defined “part-time” work as meaning fewer than 30 hours. Plaintiff further contended that the company employed one part-time worker on its staff. The court summarized the various proofs that Sutherland had to demonstrate:  

• He must prove that he has a disability within the meaning of the ADA.
• He must prove that he can perform the essential job functions with or without accommodation.
• He must prove that Peterson’s was aware of his disability and did not make a reasonable accommodation. The employer disputed this element of the case. Plaintiff countered that he sent text messages to his supervisor requesting accommodations for his knee condition.
• Further, he must show that the reasonable accommodation request would have enabled him to perform the essential job functions.
• Sutherland must also prove that the accommodation would have been feasible for his employer to make.

For its part, Peterson’s could defend against the request for accommodation of reduced hours by showing that such an accommodation would pose an undue hardship to the company.  

Based on all the foregoing considerations, the Court of Appeals vacated the summary judgment entered by the district court and allowed Sutherland to move forward with his ADA lawsuit. 

For employers, this case serves as a reminder that the Family and Medical Leave Act's 12-week period of job-protected leave is not the only law to consider when terminating an employee who may have a qualified ADA disability. In some instances, the ADA or equivalent state discrimination law (the Law Against Discrimination in New Jersey) may impose additional obligations on the employer.

Interestingly, this case did not involve a request for additional leave as a possible reasonable accommodation but rather a request for a modified work schedule.

John H. Geaney is an attorney, shareholder and co-chair of Capehart Scatchard's Workers' Compensation Group in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.