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Repetitive strain injuries and seniority preferences
ADA Update
REPETITIVE STRAIN INJURIES AND SENIORITY PREFERENCES by Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM
S
ince the Americans with Disabilities Act (ADA) was signed into law by President George H. Bush in July 1990, only five cases affecting private employers have made their way to the U.S. Supreme Court for review. Three of these cases were dealt with extensively in a series of articles in TCM from January to July 2000. Now, two more cases have been granted a hearing in the 2001-2002 session of the Supreme Court. This article will discuss the issues and implications of the court’s pending decisions for the broad practice of case management (CM). The New Legal Standard Before reviewing these cases, let’s identify why it is important for case managers to follow these decisions and be aware of their implications in daily practice. In the three cases previously identified (Sutton, Murphy, and Kirkingburg), the decisions established new legal standards for determining disability within the ADA context. Case managers should be aware of several important considerations based on those outcomes: • A medical diagnosis is not automatically considered an impairment under ADA. • Under ADA, individuals, not specific disabilities, are protected. • Each individual has to be evaluated on a case-by-case basis to determine if he or she has a disability and therefore is protected under ADA. Courts now must consider mitigating or corrective measures when determining whether or not an individual meets the statutory definition of disability. Therefore, case managers must have an increased awareness of the role these TCM 20
November/December 2001
measures play in determining who might be considered qualified and protected under ADA. If you are involved in the return-to-work process, it is important that you ask a treating physician to be as specific as possible when releasing an individual to return to work and assigning restrictions to physical activity. If you are in a position to recommend or approve services, it is important to provide all the necessary medical and rehabilitation services possible for an individual to regain maximum functioning. It also is important for case managers to communicate thoroughly with treating physicians regarding the possibilities of mitigating or corrective measures, such as specific medications or prosthetic devices. Consequently, it is important for case managers to understand the side effects, either positive or negative, of using a particular mitigating or corrective measure. With this knowledge, case managers can become advocates for reasonable accommodation for clients qualified to return to specific positions. An awareness of the process of providing reasonable accommodations, as outlined in court decisions, will help yield a more successful conclusion. Case managers representing or assisting employers in personnel issues should be aware that the courts have granted employers the right to make hiring choices based on appropriate qualification standards for specific jobs. According to the courts, employers also have a right to establish those standards. Furthermore, case managers should have a working knowledge of the process by which court decisions influence the roles of health care professionals. The ADA is a continually evolving process unfolding through our court system. When vocational evaluations are presented in court, the plaintiff ’s actual circumstances must be assessed. In that assessment process,
both the positive and negative effects of mitigating or corrective measures must be considered. Case managers involved in vocational evaluations must review and be aware of those positive and negative effects. The Supreme Court also has concluded that, under ADA, working is a major life activity (MLA). Because the Equal Employment Opportunity Commission (EEOC) hears any ADA complaints first, case managers should understand the process the commission goes through. Case managers may find themselves in the midst of this process when required to answer questions from the EEOC regarding their role in individual circumstances. Two Cases To Be Heard Now let’s turn to the two cases that will be heard by the Supreme Court in the next session. As previously noted, the court decisions that have been rendered do not specify any impairment as a disability under ADA. However, in the case to be heard, Toyota versus Williams, the court has been asked to define disability. In the second case, U.S. Airways versus Barnett, employers may have to make accommodations even if they violate preexisting seniority systems. In Toyota versus Williams, which is scheduled to be heard November 7, the question presented to the court is as follows: do repetitive strain injuries constitute an impairment under ADA? Ms. Williams worked in Toyota’s Kentucky assembly plant using pneumatic tools. She developed carpal tunnel syndrome and tendonitis in her hands and arms. She was transferred to an inspection position and also wiped down cars as a part of her duties. Her job duties were increased to wiping down cars with highlight oil at the rate of one car per minute. In this added duty, she was required to keep her arms and hands at shoulder height for extended periods.
Because this requirement aggravated her symptoms, she requested a transfer to her old position. The federal judge in Lexington, Ky., granted a motion for summary judgment to Toyota, saying Williams did not have a disability covered under ADA. Williams appealed, and the Sixth Circuit, which includes the districts of Kentucky, Michigan, Ohio, and Tennessee, determined Williams did have a disability that prevented her from doing the tasks associated with certain types of manual jobs. The court decided her disability was similar to that of an individual who had missing, damaged, or deformed limbs. The Sixth Circuit reversed the lower court’s decision and said this case must be heard by a jury. This case is important because it discusses, in depth, performing manual tasks as an MLA under ADA. Some legal commentators have noted this decision expands an employer’s obligation so “that every workers’ compensation case involving carpal tunnel syndrome has the potential to become a dangerous ADA case.”1 If the Supreme Court concurs with the Sixth Circuit Court of Appeals’ decision, a wide variety of other repetitive-motion disorders could be considered protected under ADA. Currently, because of the decisions in Sutton and Murphy, being restricted from doing one particular job is not a substantial limitation in the MLA of working. In the second case, U.S. Airways versus Barnett, the question to be decided by the Supreme Court is whether an employer must circumvent the normal seniority system for job placement to make a reasonable accommodation for a disabled worker under ADA. In this case, which is scheduled to be heard December 4, the plaintiff, Mr. Barnett, injured his back in 1990 while working at a cargo job in San Francisco. He was
unable to return to his cargo position, and he used his seniority to transfer to a mailroom job. Two years after his transfer to this mailroom position, the job became open for bidding by other workers with more seniority. He requested that U.S. Airways give him the mailroom position permanently, but the airlines said he would be removed from the position and placed on job injury leave. The company later denied a second request for accommodation. A federal judge in Oakland, Calif., granted a motion for summary judgment to U.S. Airways. On appeal, the Ninth Circuit Court of Appeals examined whether a seniority system is a barrier to reassignment as a method of reasonable accommodation. EEOC guidelines say reassignment is a reasonable accommodation and an employer must modify a workplace policy for a disabled individual as a reasonable accommodation if no undue hardship results. The court found that the EEOC Guidance on Reasonable Accommodation rejects a per se bar in a collective bargaining situation. One of the justices wrote, “If there is no undue hardship, a disabled employee who seeks reassignment as a reasonable accommodation, if otherwise qualified for a position, should receive the position rather than merely have an opportunity to compete with nondisabled employees.”2
the company will be sued for disability discrimination under ADA. Conclusion The outcomes of both cases pending before the Supreme Court will have a profound impact on human resource decisions and how future ADA cases will be litigated. A follow-up article will appear in The Case Manager after the decisions have been announced. ❑ References 1. Skoning GD. Can companies ever satisfy the ADA? Available from: www.law.com. Cited 2001 July 13. 2. U.S. Airways, Inc. v. Barnett, No. 001250 (Barnett v. U.S. Air, 228 F.3d 1105—9th Cir. 2000). 3. Toyota Motor Mfg., Ky, Inc. v. Williams, No. 00-1089 (Williams v. Toyota Motor Mfg, Ky., Inc., 224 F. 3d 840—6th Cir. 2000). Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM, is the vice president of and rehabilitation consultant for Mc/RS in Ankeny, Iowa. He also is the director of the Life Career Planning Institute and can be reached at [email protected]. Reprint orders: Mosby, Inc., 11830 Westline Industrial Dr., St. Louis, MO 63146-3318; phone (314) 453-4350; reprint no. 68/1/120180 doi:10.1067/mcm.2001.120180
Some commentators have said the issue is a Catch 22 for employers. A company attempting to provide reasonable accommodation under ADA may “collide” with the seniority system under a collective bargaining agreement. If the employer accepts the accommodation and it violates the seniority clause of the union contract, as well as the National Labor Relations Act, the company most likely will lose a seniority grievance at arbitration. On the other hand, if the employer denies the accommodation, November/December 2001
TCM 21
REPETITIVE STRAIN INJURIES AND SENIORITY PREFERENCES by Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM
S
ince the Americans with Disabilities Act (ADA) was signed into law by President George H. Bush in July 1990, only five cases affecting private employers have made their way to the U.S. Supreme Court for review. Three of these cases were dealt with extensively in a series of articles in TCM from January to July 2000. Now, two more cases have been granted a hearing in the 2001-2002 session of the Supreme Court. This article will discuss the issues and implications of the court’s pending decisions for the broad practice of case management (CM). The New Legal Standard Before reviewing these cases, let’s identify why it is important for case managers to follow these decisions and be aware of their implications in daily practice. In the three cases previously identified (Sutton, Murphy, and Kirkingburg), the decisions established new legal standards for determining disability within the ADA context. Case managers should be aware of several important considerations based on those outcomes: • A medical diagnosis is not automatically considered an impairment under ADA. • Under ADA, individuals, not specific disabilities, are protected. • Each individual has to be evaluated on a case-by-case basis to determine if he or she has a disability and therefore is protected under ADA. Courts now must consider mitigating or corrective measures when determining whether or not an individual meets the statutory definition of disability. Therefore, case managers must have an increased awareness of the role these TCM 20
November/December 2001
measures play in determining who might be considered qualified and protected under ADA. If you are involved in the return-to-work process, it is important that you ask a treating physician to be as specific as possible when releasing an individual to return to work and assigning restrictions to physical activity. If you are in a position to recommend or approve services, it is important to provide all the necessary medical and rehabilitation services possible for an individual to regain maximum functioning. It also is important for case managers to communicate thoroughly with treating physicians regarding the possibilities of mitigating or corrective measures, such as specific medications or prosthetic devices. Consequently, it is important for case managers to understand the side effects, either positive or negative, of using a particular mitigating or corrective measure. With this knowledge, case managers can become advocates for reasonable accommodation for clients qualified to return to specific positions. An awareness of the process of providing reasonable accommodations, as outlined in court decisions, will help yield a more successful conclusion. Case managers representing or assisting employers in personnel issues should be aware that the courts have granted employers the right to make hiring choices based on appropriate qualification standards for specific jobs. According to the courts, employers also have a right to establish those standards. Furthermore, case managers should have a working knowledge of the process by which court decisions influence the roles of health care professionals. The ADA is a continually evolving process unfolding through our court system. When vocational evaluations are presented in court, the plaintiff ’s actual circumstances must be assessed. In that assessment process,
both the positive and negative effects of mitigating or corrective measures must be considered. Case managers involved in vocational evaluations must review and be aware of those positive and negative effects. The Supreme Court also has concluded that, under ADA, working is a major life activity (MLA). Because the Equal Employment Opportunity Commission (EEOC) hears any ADA complaints first, case managers should understand the process the commission goes through. Case managers may find themselves in the midst of this process when required to answer questions from the EEOC regarding their role in individual circumstances. Two Cases To Be Heard Now let’s turn to the two cases that will be heard by the Supreme Court in the next session. As previously noted, the court decisions that have been rendered do not specify any impairment as a disability under ADA. However, in the case to be heard, Toyota versus Williams, the court has been asked to define disability. In the second case, U.S. Airways versus Barnett, employers may have to make accommodations even if they violate preexisting seniority systems. In Toyota versus Williams, which is scheduled to be heard November 7, the question presented to the court is as follows: do repetitive strain injuries constitute an impairment under ADA? Ms. Williams worked in Toyota’s Kentucky assembly plant using pneumatic tools. She developed carpal tunnel syndrome and tendonitis in her hands and arms. She was transferred to an inspection position and also wiped down cars as a part of her duties. Her job duties were increased to wiping down cars with highlight oil at the rate of one car per minute. In this added duty, she was required to keep her arms and hands at shoulder height for extended periods.
Because this requirement aggravated her symptoms, she requested a transfer to her old position. The federal judge in Lexington, Ky., granted a motion for summary judgment to Toyota, saying Williams did not have a disability covered under ADA. Williams appealed, and the Sixth Circuit, which includes the districts of Kentucky, Michigan, Ohio, and Tennessee, determined Williams did have a disability that prevented her from doing the tasks associated with certain types of manual jobs. The court decided her disability was similar to that of an individual who had missing, damaged, or deformed limbs. The Sixth Circuit reversed the lower court’s decision and said this case must be heard by a jury. This case is important because it discusses, in depth, performing manual tasks as an MLA under ADA. Some legal commentators have noted this decision expands an employer’s obligation so “that every workers’ compensation case involving carpal tunnel syndrome has the potential to become a dangerous ADA case.”1 If the Supreme Court concurs with the Sixth Circuit Court of Appeals’ decision, a wide variety of other repetitive-motion disorders could be considered protected under ADA. Currently, because of the decisions in Sutton and Murphy, being restricted from doing one particular job is not a substantial limitation in the MLA of working. In the second case, U.S. Airways versus Barnett, the question to be decided by the Supreme Court is whether an employer must circumvent the normal seniority system for job placement to make a reasonable accommodation for a disabled worker under ADA. In this case, which is scheduled to be heard December 4, the plaintiff, Mr. Barnett, injured his back in 1990 while working at a cargo job in San Francisco. He was
unable to return to his cargo position, and he used his seniority to transfer to a mailroom job. Two years after his transfer to this mailroom position, the job became open for bidding by other workers with more seniority. He requested that U.S. Airways give him the mailroom position permanently, but the airlines said he would be removed from the position and placed on job injury leave. The company later denied a second request for accommodation. A federal judge in Oakland, Calif., granted a motion for summary judgment to U.S. Airways. On appeal, the Ninth Circuit Court of Appeals examined whether a seniority system is a barrier to reassignment as a method of reasonable accommodation. EEOC guidelines say reassignment is a reasonable accommodation and an employer must modify a workplace policy for a disabled individual as a reasonable accommodation if no undue hardship results. The court found that the EEOC Guidance on Reasonable Accommodation rejects a per se bar in a collective bargaining situation. One of the justices wrote, “If there is no undue hardship, a disabled employee who seeks reassignment as a reasonable accommodation, if otherwise qualified for a position, should receive the position rather than merely have an opportunity to compete with nondisabled employees.”2
the company will be sued for disability discrimination under ADA. Conclusion The outcomes of both cases pending before the Supreme Court will have a profound impact on human resource decisions and how future ADA cases will be litigated. A follow-up article will appear in The Case Manager after the decisions have been announced. ❑ References 1. Skoning GD. Can companies ever satisfy the ADA? Available from: www.law.com. Cited 2001 July 13. 2. U.S. Airways, Inc. v. Barnett, No. 001250 (Barnett v. U.S. Air, 228 F.3d 1105—9th Cir. 2000). 3. Toyota Motor Mfg., Ky, Inc. v. Williams, No. 00-1089 (Williams v. Toyota Motor Mfg, Ky., Inc., 224 F. 3d 840—6th Cir. 2000). Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM, is the vice president of and rehabilitation consultant for Mc/RS in Ankeny, Iowa. He also is the director of the Life Career Planning Institute and can be reached at [email protected]. Reprint orders: Mosby, Inc., 11830 Westline Industrial Dr., St. Louis, MO 63146-3318; phone (314) 453-4350; reprint no. 68/1/120180 doi:10.1067/mcm.2001.120180
Some commentators have said the issue is a Catch 22 for employers. A company attempting to provide reasonable accommodation under ADA may “collide” with the seniority system under a collective bargaining agreement. If the employer accepts the accommodation and it violates the seniority clause of the union contract, as well as the National Labor Relations Act, the company most likely will lose a seniority grievance at arbitration. On the other hand, if the employer denies the accommodation, November/December 2001
TCM 21