Workers who are injured are interested in both continued employment and in compensation. But they also face many questions. Should they report the injury to their employer? Should they claim compensation? How do they get medical care for the injury? What will happen to their jobs?  Is there any way that they can help make sure this doesn’t happen to a co-worker? Are they entitled to retain their jobs?  To be accommodated?  Does accommodation include a right to stay home and recuperate from an injury? What are their rights to return from time away from work, whether or not they have collected benefits?  

Once injured, the employee is surrounded by a confusing array of rights and obligations.  Workers’ compensation programs, private disability, Social Security Disability Insurance, the Americans with Disabilities Act and the Family and Medical Leave Act have different definitions of what constitutes a qualifying disability in order to qualify for benefits or for protection -- plus, there are varying state laws regarding rights to leave, or paid leave, that may overlap with federal protections.  In fact, alleging a qualifying impairment in one system can lead to a denial in another system.

Understanding the issues – and the problems – that are inherent in these complex systems ultimately underscores the need to focus on prevention. 

There are at least three ways to think about this question.

First: what are the mechanisms for obtaining insurance (for the employer), reporting the injury, and obtaining benefits (for the worker)?

States often post information for employers, insurers and injured workers on their state websites.

For example, in Massachusetts, these guides are posted:  

Massachusetts guide for employers: https://www.mass.gov/service-details/employers-guide-to-workers-compensation

 Massachusetts Guide for Injured Workers:  https://www.mass.gov/service-details/injured-workers-guide-to-workers-compensation

Second: is this a fair and efficient system to provide benefits to injured workers? 

Sadly, the system does not work well.  Some of the concerns are summarized in the separately posted chapter on workers’ compensation in the Oxford Handbook of U.S. Social Policy.  You should read pages 458-465 of this chapter now, and then return to these readings.

The processes in each state are complex – even Kafkaesque.  While insurers are ‘repeat players’ in the systems, individual injured workers are not.  They usually rely on claimants’ lawyers, who often have very large caseloads and are also ‘repeat players.’  The system becomes a kind of inside-baseball process which is deeply confusing to anyone who is not a regular participant. It is very difficult to compare one state system to another.  When issues come up in state legislatures, experts are hired to tell legislators that another state – often a neighboring state – has a provision that is more pro-business (that is, less expensive for employers) than the state at issue.  Thus a continuous downward spiral is born, and it is exacerbated by concerns about economic development and unemployment. 

A series of reports exposed some of the serious problems in the system.  Look in particular at the following:

Michael Grabell, ProPublica, and Howard Berkes, NPR, The Demolition of Workers' Compensation  (March 4, 2015)

David Michaels (OSHA), Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job (June 2015)

U.S. Department of Labor, Does the workers' compensation system fulfill its obligation to injured workers?  (2016)

ProPublica has issued multiple stories on workers’ compensation.  Another interesting one focuses on legislation that allowed employers to “opt out” of workers’ compensation while retaining their immunity from tort: Opting Out: Inside Corporate America's Campaign to Ditch Workers' Compensation. The opt-out system in Oklahoma was held unconstitutional by the Oklahoma Supreme Court in Vasquez v. Dillard's, Inc., 381 P.3d 768 (Okla. 2016) ( and it has not been successfully introduced elsewhere.

To read about the political campaign to dismember state workers’ compensation statutes, see Molly Redden, “Walmart, Lowe's, Safeway, and Nordstrom Are Bankrolling a Nationwide Campaign to Gut Workers' Comp,” Mother Jones, March 26, 2015, http://www.motherjones.com/politics/2015/03/arawc-walmart-campaign-against-workers-compensation 

 Finally – read a Globe article on what happens to injured immigrant workers in the Boston area:  https://www.bostonglobe.com/business/2016/09/17/construction-boom-immigrant-workers-face-perils-exploitation/WmlvDkLB4bRE9jp71wca2M/story.html

Third: is it an effective means for providing tort immunity to employers?

In most states, the answer to this would be clearly, “Yes!”  All states have an exception for “intentional torts,” but the general rule is that there must be objective intent to injure to escape from the workers’ compensation system.  Thus, the intentional tort exception in the majority of states has been interpreted to shield employers from virtually any tort suit involving injury or illness.  Some states allow a multiplier on an award of benefits in these circumstances. 

But see below for some exceptions to this rule. 

Perhaps not surprisingly, the world of workers’ compensation reacted to the widespread at-work communication of an infectious disease with concern. Were these compensable illnesses? Should they be? What would a worker have to prove to obtain compensation? (Why would a worker bother to file for workers’ compensation for Covid-19?)

Coverage for occupational diseases is often inadequate – diseases are difficult to link to workplaces; some, particularly cancers, have long latency periods; some statutes provide that an “ordinary disease of life” – that is, a disease that is common outside of workplaces – is not eligible for compensation; and so on.

Infectious diseases are rarely compensated. One response: why would we compensate someone who gets the flu? But as the incidence of workplace clusters of Covid-19 increased, there was also increased agitation for workers’ compensation programs to provide benefits.

Despite the challenges, it seems that almost every state has awarded benefits to at least some workers – generally health care workers.

For a discussion of some of these issues, see Jay Patel, Workers’ Compensation and COVID-19 (May 2020); Elaine Weiss, State Spotlight: Washington's Multi-Faceted Approach to Worker Safety and Compensation During COVID (November 2020) (available at https://www.nasi.org/research/covid-19-legislative-response/state-spotlight-washingtons-multi-faceted-approach-to-worker-safety-and-compensation-during-covid-is-paying-off-2)

Several states reacted by creating presumptions regarding workplace causation to help workers overcome the difficult task of proving that the disease was contracted at work, when it was also prevalent in the community.  In California, the rebuttable presumption applies to all workers: https://www.dir.ca.gov/dwc/Covid-19/Index.html. In Alaska, an irrebuttable presumption applies to health care workers and first responders. You can find a regularly updated list of state responses here: https://www.ncci.com/Articles/Documents/II_Covid-19-Presumptions.pdf

Think about the role of workers’ compensation in providing a safety net for workers. Do you think it can be effective in the context of a future pandemic? Do you think differently about this as more information has emerged regarding long Covid, which can be a long term debilitating disease? 

Exum, Chief Justice.

This is a wrongful death action arising from a work-related trench cave-in which killed Thomas Alfred Sprouse on Sunday, 4 August 1985. Plaintiff is the administrator of Sprouse’s estate. The principal question is whether the exclusivity provisions of the Workers’ Compensation Act limit plaintiff’s remedies to those provided by the Act. …

Defendant Pinnacle One Associates (“Pinnacle One”) was the developer on a construction project for IBM in Research Triangle Park. It retained defendant Davidson & Jones, Inc. (“Davidson & Jones”) as general contractor. One aspect of the project required construction of a sanitary sewer line on Chin Page Road in Durham County. Davidson & Jones hired defendant Morris Rowland Utility, Inc. (“Rowland Utility” or “employer”) to dig the line. ... Decedent Thomas Sprouse was Rowland Utility’s employee.

… On Saturday, 3 August 1985, workers from both Rowland Utility and Davidson & Jones were digging trenches to lay sewer lines. The Chin Page Road project required two separate trenches. …   

Because the trenches were not sloped, shored, or braced, and did not have a trench box, Lynn Craig, the Davidson & Jones foreman, refused to let his men work in them. The Occupational Safety and Health Act of North Carolina (“OSHANC”) and the rules promulgated thereunder required such safety precautions for the trenches in question.  Because of the soil conditions and geography, Craig believed that a trench box was the best means of ensuring his workers’ safety. Morris Rowland procured a trench box for Craig and the Davidson & Jones crew, which commenced work inside the trench after receiving the safety device on the morning of Saturday, 3 August. Morris Rowland did not acquire a trench box for his own crew.

Charles Greene, a member of the Davidson & Jones crew, was operating a backhoe at the Rowland Utility site that Saturday. Craig checked on the site’s progress several times. Morris Rowland asked Craig if he could put a Rowland Utility man on the job because he believed that Greene was not operating the backhoe fast enough. Several times Craig denied these requests. Once, Craig operated the machinery himself for a few minutes and concluded that Greene’s progress had been adequate. In his deposition, Craig testified that by the end of the day the sides of the Rowland Utility trench were not being adequately sloped, and that it “could have been a little safer.” At that point, the trench construction violated OSHANC regulations. ^[1]

On Sunday, 4 August, the Davidson & Jones crew did not work, and its trench box lay idle. However, the Rowland Utility crew reported to the site to continue digging its trench. A Rowland Utility man, rather than Greene, was now operating the backhoe. Morris Rowland and project supervisor, Elmer Fry, discussed whether to use the trench box in their ditch. They decided not to use it, indicating in deposition that they had believed the soil was packed hard enough so the trench would not cave in.

A backhoe worked in front of decedent Sprouse and his coworkers, who were laying pipe inside the freshly dug trench. A piece of heavy machinery called a front-end loader drove along the edge of the ditch and followed their progress, dumping loads of gravel onto the newly laid pipe. Workers tamped the gravel using a device similar to a jackhammer. Sprouse was the closest person in the trench to the front-end loader.

At about 9:30 a.m. one side of the trench collapsed, completely burying Sprouse and burying the man closest to him up to his armpits. The partially buried man was Alan Fry, son of project supervisor Elmer Fry. The workers pulled Alan Fry out of the trench, and Morris Rowland took him to the hospital.

Morris Rowland did not return to the site for several hours after the cave-in. The remaining workers continued to dig Sprouse out. They refused several offers of help given by Jennifer Spencer, a security guard for another company, who was then on duty and who volunteered to call a rescue squad. By the time the workers had finished digging Sprouse out, he was dead.

The trench was approximately fourteen feet deep and four feet wide with vertical sides at the point of the cave-in. Craig, who saw the site later and commented on a photograph of it at his deposition, stated that the trench was being sloped less than it had been at the end of the previous day’s work. He characterized it as “unsafe” and stated that he “would never put a man in it.”

We first decide whether the forecast of evidence is sufficient to survive Rowland Utility’s and Morris Rowland’s motions for summary judgment, which are based on the ground that Sprouse’s death was caused only by “accident” under the Workers’ Compensation Act (“the Act”). If the death can only be considered accidental, defendants’ summary judgment motions were properly allowed because Sprouse’s death would fall within the Act’s exclusive coverage, and no other remedies than those provided in the Act are available to plaintiff either against his employer.  On the other hand, if the forecast of evidence is sufficient to show that Sprouse’s death was the result of an intentional tort committed by his employer, then summary judgment was improperly allowed on the ground stated, because the employer’s intentional tort will support a civil action. 

We conclude… that the forecast of evidence is sufficient for plaintiff to survive defendants’ motions for summary judgment because: (1) it tends to show that Sprouse’s death was the result of intentional conduct by his employer which the employer knew was substantially certain to cause serious injury or death; and (2) this conduct is tantamount to an intentional tort committed by the employer.

 Section 97–9 of the Workers’ Compensation Act provides:

Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and manner herein specified.

N.C.G.S. § 97–9 (1985) (emphasis added).

Section 97–10.1 provides:

If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.

N.C.G.S. § 97–10.1 (1985). …

The Act seeks to balance competing interests and implement trade-offs between the rights of employees and their employers. It provides for an injured employee’s certain and sure recovery without having to prove employer negligence or face affirmative defenses such as contributory negligence and the fellow servant rule. In return the Act limits the amount of recovery available for work-related injuries and removes the employee’s right to pursue potentially larger damages awards in civil actions. Notwithstanding these important trade-offs, the legislature did not intend to relieve employers of civil liability for intentional torts which result in injury or death to employees…

… Today we … hold that when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Act. Because … the injury or death caused by such misconduct is nonetheless the result of an accident under the Act, workers’ compensation claims may also be pursued. There may, however, only be one recovery. We believe this holding conforms with general legal principles and is true to the legislative intent when considered in light of the Act’s underlying purposes.

Our holding is consistent with general concepts of tort liability outside the workers’ compensation context. The gradations of tortious conduct can best be understood as a continuum. The most aggravated conduct is where the actor actually intends the probable consequences of his conduct. One who intentionally engages in conduct knowing that particular results are substantially certain to follow also intends the results for purposes of tort liability. Restatement (Second) of Torts § 8A and comment b (1965) (hereinafter “Rest.2d of Torts”). “[I]ntent is broader than a desire to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts § 8, at 35 (5th ed. 1984) (hereinafter “Prosser”). This is the doctrine of “constructive intent.” “As the probability that a [certain] consequence will follow decreases, and becomes less than substantially certain, the actor’s conduct loses the character of intent, and becomes mere recklessness..... As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence.” Rest.2d of Torts § 8A, comment b.

Prosser discusses the tortious conduct continuum:

Lying between intent to do harm, which ... includes proceeding with knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called “quasi-intent.” To this area, the words “willful,” “wanton,” or “reckless,” are customarily applied; and sometimes, in a single sentence, all three.

Prosser § 34, at 212 (footnotes omitted).

In North Carolina we follow, applying our own terminology, the basic rules discussed in the Restatement and Prosser. We have recognized the doctrine of “constructive intent” and have generally applied it where willful and wanton conduct is present. … [A]n actual intent to cause injury is not a necessary element of an intentional tort generally, nor is it required for intentional tort claims based on work-related injuries….

The substantial certainty standard satisfies the Act’s purposes of providing trade-offs to competing interests and balancing these interests, while serving as a deterrent to intentional wrongdoing and promoting safety in the workplace. N.C.G.S. § 95–126(b)(2) (1985).

Other jurisdictions which have considered how egregious employer misconduct must be in order to justify a worker’s civil recovery against the employer extraneous to workers’ compensation statutes have reached different results. Some require that the employer actually intend to harm the worker, as in a classic assault and battery suit. See, e.g., Griffin v. George’s, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979); see generally 2A Larson § 68.13 and cases cited therein. Others require the employer’s misconduct to be willful and wanton. See, e.g., Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). Still others require intentional conduct which the employer knows is “substantially certain” to cause injury or death. Bazley v. Tortorich, 397 So.2d 475 (La.1981); Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986);  Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046 (1984); Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 (S.D.1983).

It is true that some of the cases adopting the willful and wanton misconduct or substantial certainty standard have been modified by statute. Legislation enacted in Michigan modified the decision in Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882. The legislation provides:

The only exception [to the exclusivity of workers’ compensation] is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer has actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.

Mich.Comp.Laws § 418.131 (Supp.1990) (emphasis added).

Effective in 1986, the Ohio legislature amended its workers’ compensation law in an apparent response to cases such as Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572, and Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046. The Ohio statutory amendments provide for civil recovery outside workers’ compensation for acts “committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur.” 41 Ohio Rev.Code Ann. § 4121.80 (1990). Although the Ohio amendments equate substantial certainty with the “deliberate intent to cause an employee to suffer injury ... or death,” id., they also treat certain unsafe acts as if they were done with the intent to injure another.

While generally moving away from the willful and wanton misconduct standard enunciated in Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907, and toward a standard requiring “deliberate intention to injure,” W.Va.Code § 23–4–2 (1983), the West Virginia legislature has set out an important exception. The exception allows plaintiffs to recover outside workers’ compensation where the employer is aware that there is a high degree of risk of serious harm, and that the conditions creating the risk violate specific safety statutes. Id.

On the basis of these kinds of statutory modifications, Rowland Utility urges us to conclude that the willful and wanton misconduct and substantial certainty standards should be rejected as inconsistent with the legislative purpose of North Carolina’s Workers’ Compensation Act. We do not read the statutory modifications of judicial decisions in other jurisdictions to repudiate the standards adopted in those decisions. The statutory modifications seem more to narrow the application of, rather than to abolish, these standards. The Michigan legislature provided that “an employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.” Mich.Comp.Laws § 418.131 (Supp.1990). This amounts only to a rejection of the substantiality aspect of the substantial certainty standard. The Ohio and West Virginia legislatures essentially redefined what employer conduct will allow tort recovery. These legislative modifications confirm, rather than reject, the proposition that, in those states, actual intent to injure is not required in order for an employer to be civilly liable outside workers’ compensation statutes.

At least two other states, Louisiana and South Dakota, continue to apply the substantial certainty standard adopted by their judiciaries,  Bazley v. Tortorich, 397 So.2d 475 (La.); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 (S.D.), without legislative modification.

Thus, both courts and legislatures in a fair number of other jurisdictions have rejected the proposition that actual intent to harm is required for an employer’s conduct to be actionable in tort and not protected by the exclusivity provisions of workers’ compensation. Our adoption of the substantial certainty standard does the same.

We now apply the substantial certainty standard to the facts….

From this evidence, a reasonable juror could determine that upon placing a man in this trench serious injury or death as a result of a cave-in was a substantial certainty rather than an unforeseeable event, mere possibility, or even substantial probability.

There is also evidence to indicate that Morris Rowland knew of this substantial certainty. Neither we, nor later the jury, need accept his characterization of his state of mind at face value. Other evidence is available from which his state of mind can be inferred. There is evidence that Morris Rowland was capable of discerning extremely hazardous ditches. His career had been excavating different kinds of soil. He knew the attendant risks. He had been cited at least four times in six and one-half years immediately preceding this incident for violating multiple safety regulations governing trenching procedures. He was aware of safety regulations designed to protect trench diggers from serious injury or death. He knew he was not following these regulations in digging the trench in question….

Morris Rowland’s knowledge and prior disregard of dangers associated with trenching; his presence at the site and opportunity to observe the hazards; his direction to proceed without the required safety procedures; Craig’s experienced opinion that the trench was unsafe; and Rees’ scientific soil analysis converge to make plaintiff’s evidentiary forecast sufficient to survive Rowland Utility’s motion for summary judgment.

We reject Rowland Utility’s reasons for concluding to the contrary. Rowland Utility contends that no reasonable business person would knowingly engage in conduct that is substantially certain to cause a trench cave-in because of the significant delay in work and additional cost that such an event would cause. This argument is more properly directed toward the jury at trial rather than to the Court on summary judgment.

* * * *

[The remainder of the decision addressed the various liability of the different contractors and subcontractors and the issue of whether safety responsibilities could be delegated.]

FOOTNOTE

[1] Rowland Utility had been cited four times in the previous six and a half years for violating regulations governing trenching safety procedures.

1.  For a full discussion of the complexities of this “substantially certain” exception to the rule of exclusivity, see 9-103 Larson's Workers' Compensation Law § 103.04.

2.  The story in Ohio is particularly interesting. The Ohio Supreme Court first recognized the substantial certainty exception to the exclusivity rule in 1982, and subsequently affirmed the rule.  See Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St. 2d 608, 23 Ohio Op. 3d 504, 433 N.E.2d 572 (1982) and Jones v. VIP Dev. Co., 15 Ohio St. 3d 90, 472 N.E.2d 1046 (1984).   In a later case, the court attempted to clarify the standard for this claims, requiring the plaintiff to show:

(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within his business operation; (2) knowledge by the employer that if employees are required by virtue of their employment to be subjected to such dangerous process, procedure, instrumentality or condition, then harm to them would be a substantial certainty, and not just a high risk; (3) that the employer, under such circumstances, and with such knowledge, did act to so require the employee to continue performing his employment tasks.

Van Fossen v. Babcock & Wilcox Co., 36 Ohio St. 3d 100, 522 N.E.2d 489 (1988).

Prior to this decision, the legislature concluded that exclusivity needed to be shored up.  In 1986, in what would be the first of three unsuccessful attempts to reverse what the legislature viewed as excesses by the courts in the years following Blankenship and Jones, the legislature substantially amended the statute, defining intentional torts as an act committed with the belief that the injury was substantially certain to occur, and the amendment went on to define “substantially certain” to mean that the employer acted with deliberate intent to cause an employee to suffer injury, disease, condition or death. Deliberate removal of safety guards or misrepresentation of hazardous substances could be evidence of an “act committed with the intent to injure another,” but this could be rebutted by the employer.  

In 1991, in Brady v. Safety-Kleen Corp., 61 Ohio St. 3d 624, 576 N.E.2d 722 (1991), the Ohio court held the 1986 amendment to be unconstitutional in a case involving chemical exposures.  The legislature tried again, and the new section went into effect in 1995, attempting again to supercede the effects of the judicial rulings.  The new statute required a showing that the employer deliberately and intentionally injured the employee, and the plaintiff needed to demonstrate this by clear and convincing evidence.  Again, the court found the statute constitutional.  See , Johnson v. BP Chems., Inc., 85 Ohio St. 3d 298, 707 N.E. 2d 1107 (1999).

The court was not pleased with the legislature:

In Brady, the court invalidated former R.C. 4121.80 in its entirety, and, in doing so, we thought that we had made it abundantly clear that any statute created to provide employers with immunity from liability for their intentional tortious conduct cannot withstand constitutional scrutiny. Notwithstanding, the General Assembly has enacted R.C. 2745.01 and, again, seeks to cloak employers with immunity. In this regard, we can only assume that the General Assembly has either failed to grasp the import of our holdings in Brady or that the General Assembly has simply elected to willfully disregard that decision.

The legislature did not give up, and enacted a third statute.   This new version, effective April 7, 2005, provided as follows:

A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

(D) This section does not apply to claims arising during the course of employment involving discrimination, civil rights, retaliation, harassment in violation of Chapter 4112. of the Revised Code, intentional infliction of emotional distress not compensable under Chapters 4121. and 4123. of the Revised Code, contract, promissory estoppel, or defamation.

This time challenges to the statute failed.  See Kaminski v. Metal & Wire Products Co., 125 Ohio St. 3d 250, 2010 Ohio 1027, 927 N.E.2d 1066.

In 2012, the court delivered the final blow to any notion that the Ohio standard for exclusivity allowed for intentional tort suits outside workers’ compensation, except under the specific provisions of the statute.  The court noted, “[A]bsent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee's exclusive remedy is within the workers' compensation system…. The Ohio Constitution vests the General Assembly, not the courts, with the legislative powers of government. Our role, in exercise of the judicial power granted to us by the Constitution, is to interpret and apply the law enacted by the General Assembly, not to rewrite it. R.C. 2745.01 limits claims against employers for intentional torts to circumstances demonstrating a deliberate intent to cause injury to an employee …

Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St. 3d 491, 498, 983 N.E.2d 1253, 1259.

3.  Other states, including West Virginia and Michigan, have had similar stories of ping-pong between the courts and the legislature. In addition to North Carolina, at least six other states—Connecticut, New York, New Jersey, South Dakota, and Texas—now employ some version of a “substantially certain” standard.

4. In thinking about workers’ compensation, consider the following questions:

 What are the benefits to this exclusive system of compensation for occupational injury or disease to employers? employees?  Do any other groups benefit from the current system? 

On the other hand: What are the costs (in financial and in other terms) to employers?  employees?

Why do you think there was the battle between the courts and the legislature in Ohio? Which branch of government was responsive to which interests, and why?

5. Consider the question of safety incentives for a moment.  What questions would you ask about the system if you were interested in the question of prevention, as opposed to compensation.

The ADA was passed in 1990.  There was a prior law – the Rehabilitation Act of 1973 – that applied only to federal contractors.  But the ADA was the first federal law to address the rights of people with disabilities with regard to general employment rights (as well as public accommodations and other issues). It was widely viewed as groundbreaking legislation: it would prohibit discrimination against individuals with disabilities, eliminate stigma and stereotypes and create opportunities for participation in work and communities. It would thus counteract the view that the primary legal protection for disabled people was through financial transfer programs (including need-based programs and disability-based programs).  Essentially, it was intended to create broad civil rights for people with disabilities.

Key provisions of the original 1990 law (from the standpoint of this course):

42 USCA § 12102 – Definitions

(2) DISABILITY.—The term “disability” means, with respect to an individual—

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. §12112 -- Discrimination

(a) No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 

(b) CONSTRUCTION.—As used in subsection (a), the term “discriminate” includes—

(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee; …

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity… 

AMERICANS WITH DISABILITIES ACT OF 1990, PL 101–336, July 26, 1990, 104 Stat 327

The statute generated a huge amount of litigation.  The courts decidedly did not adopt the expansive view suggested by the statutory language.  In the majority of cases, the judges got hung up on the question: who is a qualified disabled person?  How broadly should the net be cast?  This question essentially defines the membership in the protected class.  Only if the plaintiff is in the protected class would a court reach the question of whether an adverse action was taken because of the disability, or whether a person with a disability should have been considered for reasonable accommodation.  As a result, there was remarkably little jurisprudence regarding the scope of reasonable accommodation.

There were several U.S. Supreme Court cases that resulted in a narrow reading of the statute.  In Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), the court decided that whether or not a person was disabled should be assessed with disability mitigation measures in place.  In Sutton, the plaintiffs wore eyeglasses: they were viewed as not disabled when they wore their glasses.  But Toyota Motor Manufacturing, Kentucky, Inc., v. Williams, 534 U.S. 184 (2002) – the case that dealt with a worker with disabilities that resulted from work – the court moved to tighten the definition of what constituted a disability in broader ways. 

The plaintiff in this case, Ella Williams, was a worker at an automobile manufacturing plant in Kentucky where she worked on the engine fabrication assembly line. Here is how the Supreme Court described the facts of the case:

Respondent began working at petitioner's automobile manufacturing plant in Georgetown, Kentucky, in August 1990. She was soon placed on an engine fabrication assembly line, where her duties included work with pneumatic tools. Use of these tools eventually caused pain in respondent's hands, wrists, and arms. She sought treatment at petitioner's in‑house medical service, where she was diagnosed with bilateral carpal tunnel syndrome and bilateral tendinitis. Respondent consulted a personal physician who placed her on permanent work restrictions that precluded her from lifting more than 20 pounds or from "frequently lifting or carrying of objects weighing up to 10 pounds," engaging in "constant repetitive ... flexion or extension of [her] wrists or elbows," performing "overhead work," or using "vibratory or pneumatic tools." Brief for Respondent 2; App. 45‑46.

In light of these restrictions, for the next two years petitioner assigned respondent to various modified duty jobs. Nonetheless, respondent missed some work for medical leave, and eventually filed a claim under the Kentucky Workers' Compensation Act. Ky.Rev.Stat. Ann. § 342.0011 et seq. (1997 and Supp.2000). The parties settled this claim, and respondent returned to work. She was unsatisfied by petitioner's efforts to accommodate her work restrictions, however, and responded by bringing an action in the United States District Court for the Eastern District of Kentucky alleging that petitioner had violated the ADA by refusing to accommodate her disability. That suit was also settled, and as part of the settlement, respondent returned to work in December 1993.

Upon her return, petitioner placed respondent on a team in Quality Control Inspection Operations (QCIO). QCIO is responsible for four tasks: (1) "assembly paint"; (2) "paint second inspection"; (3) "shell body audit"; and (4) "ED surface repair." App. 19. Respondent was initially placed on a team that performed only the first two of these tasks, and for a couple of years, she rotated on a weekly basis between them. In assembly paint, respondent visually inspected painted cars moving slowly down a conveyor. She scanned for scratches, dents, chips, or any other flaws that may have occurred during the assembly or painting process, at a rate of one car every 54 seconds. When respondent began working in assembly paint, inspection team members were required to open and shut the doors, trunk, and/or hood of each passing car. Sometime during respondent's tenure, however, the position was modified to include only visual inspection with few or no manual tasks. Paint second inspection required team members to use their hands to wipe each painted car with a glove as it moved along a conveyor. The parties agree that respondent was physically capable of performing both of these jobs and that her performance was satisfactory.

During the fall of 1996, petitioner announced that it wanted QCIO employees to be able to rotate through all four of the QCIO processes. Respondent therefore received training for the shell body audit job, in which team members apply a highlight oil to the hood, fender, doors, rear quarter panel, and trunk of passing cars at a rate of approximately one car per minute. The highlight oil has the viscosity of salad oil, and employees spread it on cars with a sponge attached to a block of wood. After they wipe each car with the oil, the employees visually inspect it for flaws. Wiping the cars required respondent to hold her hands and arms up around shoulder height for several hours at a time.

A short while after the shell body audit job was added to respondent's rotations, she began to experience pain in her neck and shoulders. Respondent again sought care at petitioner's in‑house medical service, where she was diagnosed with myotendinitis bilateral periscapular, an inflammation of the muscles and tendons around both of her shoulder blades; myotendinitis and myositis bilateral forearms with nerve compression causing median nerve irritation; and thoracic outlet compression, a condition that causes pain in the nerves that lead to the upper extremities. Respondent requested that petitioner accommodate her medical conditions by allowing her to return to doing only her original two jobs in QCIO, which respondent claimed she could still perform without difficulty.

The parties disagree about what happened next. According to respondent, petitioner refused her request and forced her to continue working in the shell body audit job, which caused her even greater physical injury. According to petitioner, respondent simply began missing work on a regular basis. Regardless, it is clear that on December 6, 1996, the last day respondent worked at petitioner's plant, she was placed under a no‑work‑of‑any‑kind restriction by her treating physicians. On January 27, 1997, respondent received a letter from petitioner that terminated her employment, citing her poor attendance record.

Williams based her claim that she was disabled under the ADA on the ground that her physical impairments substantially limited her in (1) manual tasks; (2) housework; (3) gardening; (4) playing with her children; (5) lifting; and (6) working, all of which, she argued, constituted major life activities under the Act. The Court of Appeals found that she was entitled to take her case forward to trial, reversing the granting of summary judgment against her in the district court.

The primary issue the Supreme Court addressed was what it means to be substantially limited in performing a major life activity – and thus be “disabled” within the meaning of the ADA. In particular, the court was looking at the problem of people with impairments that hindered the ability to do manual tasks.

The court concluded that “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long term.”  More specifically:

“Major life activities" thus refers to those activities that are of central importance to daily life. In order for performing manual tasks to fit into this category  a category that includes such basic abilities as walking, seeing, and hearing  the manual tasks in question must be central to daily life….

[T]hese terms need to be interpreted strictly to create a demanding standard for qualifying as disabled… When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job… Even more critically, the manual tasks unique to any particular job are not necessarily important parts of most people's lives. As a result, occupation specific tasks may have only limited relevance to the manual task inquiry. In this case, "repetitive work with hands and arms extended at or above shoulder levels for extended periods of time," is not an important part of most people's daily lives. The [circuit] court, therefore, should not have considered respondent's inability to do such manual work in her specialized assembly line job as sufficient proof that she was substantially limited in performing manual tasks….

At the same time, the Court of Appeals appears to have disregarded the very type of evidence that it should have focused upon. It treated as irrelevant "[t]he fact that [respondent] can ... ten[d] to her personal hygiene [and] carr[y] out personal or household chores." … Yet household chores, bathing, and brushing one's teeth are among the types of manual tasks of central importance to people's daily lives, and should have been part of the assessment of whether respondent was substantially limited in performing manual tasks… In addition, … even after her condition worsened, she could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house. The record also indicates that her medical conditions caused her to avoid sweeping, to quit dancing, to occasionally seek help dressing, and to reduce how often she plays with her children, gardens, and drives long distances.  But these changes in her life did not amount to such severe restrictions in the activities that are of central importance to most people's daily lives that they establish a manual task disability as a matter of law.”

Notably, all prior anti-discrimination statutes had been interpreted liberally – not with the strictness suggested by the court here.  The Toyota case was one of a series that drew an ever-tightening noose around the ADA, so that people with common impairments, who had difficulty doing a range of tasks, could not meet the standard required to be covered by the Act – essentially they could not prove they were “disabled” in a legal sense, and therefore never had a chance to prove that they were the victims of discriminatory acts by their employers.

DIANA GRIBBON MOTZ, Circuit Judge:

Pursuant to recent amendments to the Americans With Disabilities Act, a sufficiently severe temporary impairment may constitute a disability. Because the district court held to the contrary, we reverse and remand.

I.A.

Carl Summers appeals the dismissal of his complaint for failure to state a claim on which relief can be granted. Accordingly, we recount the facts as alleged by Summers.  

In July 2011, Summers began work as a senior analyst for the Altarum Institute, a government contractor with an office in Alexandria, Virginia. Summers's job required him to travel to the Maryland offices of Altarum's client, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (“DCoE”). At DCoE, Summers conducted statistical research, wrote reports, and made presentations. Altarum policy authorized employees to work remotely if the client approved. The client, here DCoE, preferred contractors to work on-site during business hours, but permitted them to work remotely from home when “putting in extra time on [a] project.”

On October 17, 2011, Summers fell and injured himself while exiting a commuter train on his way to DCoE. With a heavy bag slung over his shoulder, he lost his footing and struck both knees against the train platform. Paramedics took Summers to the hospital, where doctors determined that he had sustained serious injuries to both legs. Summers fractured his left leg and tore the meniscus tendon in his left knee. He also fractured his right ankle and ruptured the quadriceps-patellar tendon in his right leg. Repairing the left-leg fracture required surgery to fit a metal plate, screws, and bone into his tibia. Treating Summers's ruptured right quadriceps required another surgery to drill a hole in the patella and refasten his tendons to the knee.

Doctors forbade Summers from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bed rest, pain medication, and physical therapy, Summers alleges that he would “likely” not have been able to walk for more than a year after the accident.

While hospitalized, Summers contacted an Altarum human-resources representative about obtaining short-term disability benefits and working from home as he recovered. The Altarum representative agreed to discuss “accommodations that would allow Summers to return to work,” but suggested that Summers “take short-term disability and focus on getting well again.” Summers sent emails to his supervisors at Altarum and DCoE seeking advice about how to return to work; he suggested “a plan in which he would take short-term disability for a few weeks, then start working remotely part-time, and then increase his hours gradually until he was full-time again.”

Altarum's insurance provider granted Summers short-term disability benefits. But Altarum never followed up on Summers's request to discuss how he might successfully return to work. The company did not suggest any alternative reasonable accommodation or engage in any interactive process with Summers. Nor did Altarum tell Summers that there was “any problem with his plan for a graduated return to work.” Instead, on November 30, Altarum simply informed Summers “that Altarum was terminating [him] effective December 1, 2011, in order to place another analyst in his role at DCoE.”

B.

… Summers filed a complaint in the Eastern District of Virginia alleging two claims under the Americans With Disability Act (“ADA” or “Act”). First, Summers asserted that Altarum discriminated against him by wrongfully discharging him on account of his disability. Second, Summers asserted that Altarum failed to accommodate his disability. ..[T]he district court again granted Altarum's motion to dismiss both claims…First, the court dismissed the wrongful-discharge claim on the ground that Summers had failed to allege that he was disabled. The court reasoned that a “temporary condition, even up to a year, does not fall within the purview of the [A]ct” and so “the defendant's not disabled.” The court further suggested that Summers was not disabled because he could have worked with the assistance of a wheelchair. Second, the court dismissed Summers's failure-to-accommodate claim on the ground that Summers failed to allege that he had requested a reasonable accommodation. The court reasoned that an employee bears the burden of requesting a reasonable accommodation, and that Summers's proposal to work temporarily from home was unreasonable “because it sought to eliminate a significant function of the job.”

On appeal, Summers challenges only the district court's dismissal of his wrongful-discharge claim. He does not contest the court's dismissal of his failure-to-accommodate claim, and so we do not consider it.

II.

The ADA makes it unlawful for covered employers to “discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a) (2012). The Act prohibits covered employers from discharging qualified employees because they are disabled. Id. To establish a wrongful-discharge claim, a plaintiff must show, among other things, that he suffered from a “disability.”  

Under the ADA, a “disability” may take any of the following forms: (1) “a physical or mental impairment that substantially limits one or more major life activities” (the “actual-disability” prong); (2) “a record of such an impairment” (the “record-of” prong); or (3) “being regarded as having such an impairment” (the “regarded-as” prong). 42 U.S.C. § 12102(1). Summers alleges that he was disabled under the ADA's actual-disability prong. Specifically, he asserts that his impairment “substantially limit[ed]” his ability to walk—which the ADA recognizes as one of the “major life activities” whose substantial limitation qualifies as a disability. Id. § 12102(2)(A). Accordingly, if Summers's impairment substantially limited his ability to walk, he suffered a “disability” for purposes of the ADA.

In September 2008, Congress broadened the definition of “disability” by enacting the ADA Amendments Act of 2008, Pub.L. No. 110–325, 122 Stat. 3553 (“ADAAA” or “amended Act”). In response to a series of Supreme Court decisions that Congress believed improperly restricted the scope of the ADA, it passed legislation with the stated purpose of “reinstating a broad scope of protection to be available under the ADA.” Id. § 2(b)(1). Particularly relevant to this case, Congress sought to override Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 199, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), in which the Supreme Court had adopted a strict construction of the term “disability” and suggested that a temporary impairment could not qualify as a disability under the Act. Congress believed that Toyota set an “inappropriately high level of limitation necessary to obtain coverage under the ADA.” Pub.L. No. 110–325, § 2(b)(5).

Abrogating Toyota, the amended Act provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by [its] terms.” 42 U.S.C. § 12102(4)(A). Further, Congress instructed that the term “substantially limits” be interpreted consistently with the liberalized purposes of the ADAAA. Id. § 12102(4)(B).^[1] And Congress directed the Equal Employment Opportunity Commission (“EEOC”) to revise its regulations defining the term “substantially limits” to render them consistent with the broadened scope of the statute. Pub.L. No. 110–325, § 2(b)(6).

After notice and comment, the EEOC promulgated regulations clarifying that “[t]he term ‘substantially limits' shall be construed broadly in favor of expansive coverage” and that the term is “not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i) (2013). The EEOC regulations also expressly provide that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving an actual disability. Id. § 1630.2(j)(1)(ix) (emphasis added).

According to the appendix to the EEOC regulations, the “duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity.” Id. § 1630.2(j)(1)(ix) (app.). Although “[i]mpairments that last only for a short period of time are typically not covered,” they may be covered “if sufficiently severe.” Id. The EEOC appendix illustrates these principles: “[I]f an individual has a back impairment that results in a 20–pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.” Id.

III.

In dismissing Summers's wrongful-discharge claim, the district court held that, even though Summers had “suffered a very serious injury,” this injury did not constitute a disability because it was temporary and expected to heal within a year. That holding represented an entirely reasonable interpretation of Toyota and its progeny. But in 2008, Congress expressly abrogated Toyota by amending the ADA. We are the first appellate court to apply the amendment's expanded definition of “disability.”^[2]  Fortunately, the absence of appellate precedent presents no difficulty in this case: Summers has unquestionably alleged a “disability” under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion.

A.

Summers alleges that his accident left him unable to walk for seven months and that without surgery, pain medication, and physical therapy, he “likely” would have been unable to walk for far longer.^[3]  The text and purpose of the ADAAA and its implementing regulations make clear that such an impairment can constitute a disability.

In the amended Act, after concluding that courts had construed the term “disability” too narrowly, Congress stated that it intended to liberalize the ADA “in favor of broad coverage.” 42 U.S.C. § 12102(4)(A). Congress also mandated that the ADA, as amended, be interpreted as broadly as its text permits. Id. Furthermore, the EEOC, pursuant to its delegated authority to construe “disability” more generously, adopted new regulations providing that an impairment lasting less than six months can constitute a disability. 29 C.F.R. § 1630.2(j)(1)(ix). Although short-term impairments qualify as disabilities only if they are “sufficiently severe,” id. § 1630.2(j)(1)(ix) (app.), it seems clear that the serious impairment alleged by Summers is severe enough to qualify. If, as the EEOC has concluded, a person who cannot lift more than twenty pounds for “several months” is sufficiently impaired to be disabled within the meaning of the amended Act, id., then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled.

In holding that Summers's temporary injury could not constitute a disability as a matter of law, the district court erred not only in relying on pre-ADAAA cases but also in misapplying the ADA disability analysis. The court reasoned that, because Summers could have worked with a wheelchair, he must not have been disabled. This inverts the appropriate inquiry. A court must first establish whether a plaintiff is disabled by determining whether he suffers from a substantially limiting impairment. Only then may a court ask whether the plaintiff is capable of working with or without an accommodation. See 42 U.S.C. § 12102(4)(E)(i)(III) (the determination whether an impairment is substantially limiting “shall be made without regard to the ameliorative effects of ... reasonable accommodations”). If the fact that a person could work with the help of a wheelchair meant he was not disabled under the Act, the ADA would be eviscerated.^[4]

B.

Despite the sweeping language of the amended Act and the clear regulations adopted by the EEOC, Altarum maintains that a temporary impairment cannot constitute a disability. In doing so, Altarum principally relies on pre-ADAAA cases that, as we have explained, the amended Act abrogated. Additionally, Altarum briefly advances two other arguments why Summers's leg injuries did not “substantially limit” his ability to walk.

First, Altarum contends that the EEOC regulations defining a disability to include short-term impairments do not warrant deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Altarum argues that Congress's intent “not to extend ADA coverage to those with temporary impairments expected to fully heal is evident,” because such a “dramatic expansion of the ADA would have been accompanied by some pertinent statement of Congressional intent.” Altarum Br. 34–35.

When a litigant challenges an agency's interpretation of a statute, we apply the familiar two-step Chevron analysis. First, we evaluate whether Congress has “directly spoken” to the precise question at issue. If traditional rules of statutory construction render the intent of Congress clear, “that is the end of the matter.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If the statute is “silent or ambiguous” with respect to the question at issue, we proceed to the second step—determining whether the agency's interpretation of the statute is reasonable. Id. at 843, 104 S.Ct. 2778. An agency's reasonable interpretation will control, even if better interpretations are possible. Id. at 843 n. 11, 104 S.Ct. 2778.

Although Altarum contends that Congress's intent to withhold ADA coverage from temporarily impaired employees is “evident,” Altarum Br. 34, no such intent seems evident to us. To be sure, the amended Act does preserve, without alteration, the requirement that an impairment be “substantial” to qualify as a disability. But Congress enacted the ADAAA to correct what it perceived as the Supreme Court's overly restrictive definition of this very term. And Congress expressly directed courts to construe the amended statute as broadly as possible. Moreover, while the ADAAA imposes a six-month requirement with respect to “regarded-as” disabilities, it imposes no such durational requirement for “actual” disabilities, thus suggesting that no such requirement was intended. See Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (“[A] negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.”). For these reasons, we must reject Altarum's contention that the amended Act clearly evinces Congress's intent to withhold ADA coverage for temporary impairments. At best, the statute is ambiguous with respect to whether temporary impairments may now qualify as disabilities.

Accordingly, we turn to step two of the Chevron analysis—determining whether the EEOC's interpretation is reasonable. We conclude that it is. The EEOC's decision to define disability to include severe temporary impairments entirely accords with the purpose of the amended Act. The stated goal of the ADAAA is to expand the scope of protection available under the Act as broadly as the text permits. The EEOC's interpretation—that the ADAAA may encompass temporary disabilities—advances this goal. Moreover, extending coverage to temporarily impaired employees produces consequences less “dramatic” than Altarum seems to envision. Prohibiting employers from discriminating against temporarily disabled employees will burden employers only as long as the disability endures. Temporary disabilities require only temporary accommodations.

Alternatively, Altarum argues that, even deferring to the EEOC regulations, Summers's impairment does not qualify as a disability. Altarum maintains that the EEOC regulations do not apply to Summers's impairment because those regulations do not cover “temporary impairments due to injuries” even if they do cover “impairments due to permanent or long-term conditions that have only a short term impact.” Altarum Br. 37.

But, in fact, the EEOC regulations provide no basis for distinguishing between temporary impairments caused by injuries, on one hand, and temporary impairments caused by permanent conditions, on the other. The regulations state only that the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting”—they say nothing about the cause of the impairment. 29 C.F.R. § 1630.2(j)(1)(ix).

Nor do the regulations suggest that an “injury” cannot be an “impairment.” Rather, the EEOC defines an impairment broadly to include “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems,” including the “musculoskeletal” system. Id. § 1630.2(h)(1). This expansive definition surely includes broken bones and torn tendons. And the EEOC elsewhere uses the terms “injury” and “impairment” interchangeably. See id. § 1630.2(j)(5) n. 3 (app.); id. § 1630.15(f) (app.).

In sum, nothing about the ADAAA or its regulations suggests a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions. Because Summers alleges a severe injury that prevented him from walking for at least seven months, he has stated a claim that this impairment “substantially limited” his ability to walk.

IV.

Under the ADAAA and its implementing regulations, an impairment is not categorically excluded from being a disability simply because it is temporary. The impairment alleged by Summers falls comfortably within the amended Act's expanded definition of disability. We therefore reverse the district court's dismissal of Summers's wrongful-discharge claim and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED

[1] The ADAAA provides, with respect to the “regarded-as” prong, that a plaintiff will not be disabled if his impairment is “transitory and minor,” i.e. of “an actual or expected duration of 6 months or less.” Id. § 12102(3)(B). It contains no similar durational requirement for the “actual-disability” prong.

[2]  In Reynolds v. American National Red Cross, 701 F.3d 143, 151–52 (4th Cir.2012), we briefly discussed the ADAAA before declining to apply the statute retroactively. In the course of our discussion we noted that the plaintiff's impairment—a minor lifting restriction—was not severe enough to constitute a disability even under the ADAAA's liberal new standard. Id. at 154 n. 10. But we did not suggest, let alone hold, that the ADAAA excluded temporary impairments from its definition of disability.

[3] In enacting the ADAAA, Congress clarified that courts must disregard so-called “mitigating measures” when determining whether an impairment constitutes a disability. Pub.L. No. 110–325, § 2(b)(2). The new statute and regulations require courts to evaluate a plaintiff's impairment as it would manifest without treatments such as medication, mobility devices, and physical therapy. 42 U.S.C. § 12102(4)(E)(i); 29 C.F.R. § 1630.2(j)(5). A proposed but rejected regulation had included as an example of a mitigating measure “surgical interventions, except for those that permanently eliminate an impairment.” 76 Fed.Reg. 16,978, 16,983 (Mar. 25, 2011). The EEOC omitted this example due to the public's confusion over how it would apply, instead explaining that whether a given surgery constitutes a mitigating measure should be determined “on a case-by-case basis.” Id. Because Summers's impairment could constitute a disability with or without surgery, we need not address whether his surgeries constituted mitigating measures.

[4]  To mount a wrongful-discharge claim, a plaintiff must also establish that he is a “qualified individual”—i.e., that “with or without reasonable accommodation, [he] can perform the essential functions of [his] employment position.” 42 U.S.C. § 12111(8). The district court did not address the “qualified individual” issue in the context of Summers's wrongful-discharge claim. But in dismissing Summers's failure-to-accommodate claim, the court suggested that Summers was not a “qualified individual” because his requested accommodation—a temporary period of working remotely—was unreasonable. Summers does not challenge the dismissal of his failure-to-accommodate claim and so, as explained above, we do not revisit that holding. But because the “qualified individual” issue likely will arise on remand of the wrongful-discharge claim, we note that an employee's accommodation request, even an unreasonable one, typically triggers an employer's duty to engage in an “interactive process” to arrive at a suitable accommodation collaboratively with the employee. See Wilson v. Dollar General Corp., 717 F.3d 337, 346–47 (4th Cir.2013). “[L]iability for failure to engage in an interactive process depends upon a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the disabled person to perform the job's essential functions.” Id. at 347 (quoting Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 91 (1st Cir.2012))(quotation marks omitted).

1. The expansion of the definition of qualifying disability is likely to mean that fewer disability discrimination cases will result in the granting of summary judgment for employers; that more cases will be brought; and that there will be many more cases in which judicial analysis will reach the issue of reasonable accommodation. Remember that disability cases can be brought purely on the basis of stigma (the person has a qualifying disability but is able to do all of the essential functions of the job without accommodation; the employer discriminates against the person nevertheless) or on the basis of failure to provide reasonable accommodation (the person has a qualifying disability but with reasonable accommodation can perform the essential functions of the job).  Watch for this when thinking about the issue of accommodation for people who need time off or need to work from home.

2. The ADA may also affect OSHA compliance when ADA requirements are thought to conflict with basic OSHA safety requirements regarding assignment or retention of disabled employees who pose a safety risk and OSHA requirements regarding use of personal protective equipment by disabled persons. The issue of safety risks is addressed later in the readings.
3. Nevertheless, it still is difficult for plaintiffs to prove that they have a substantially limiting impairment that restricts a major life activity but still can perform the essential functions of their jobs with reasonable accommodation. See e.g. Postell v. Metropolitan Atlanta Rapid Transit Authority, 2018 WL 7079178 (N.D.Ga., 2018).

The protections under the Family & Medical Leave Act (FMLA),  29 U.S.C. §§2601-2654, appear straightforward: employees have the right to 12 weeks of (unpaid) leave plus a right to return to work in an equivalent job plus the right to have health insurance continue through the leave.

How does this affect workers with occupational injuries? Under state interpretations of workers' compensation law, an employer can terminate a worker for an absence when the absence is in violation of the employer's 'absence control policy.’ In most states, this means that an injured worker covered by one of these policies can be terminated while off and collecting workers' compensation benefits. Employers may also not be required to continue general health insurance for workers during time off from an occupational injury – and this may mean that not only the worker, but the worker’s family, could lose coverage.

In contrast, if the worker is covered by the FMLA, then the employer cannot terminate the worker and must guarantee continuation of health insurance and reinstatement to the worker’s prior job at the end of the leave (unless the employee is a high level manager). Protections for time off work may also flow from current interpretation of the Americans with Disabilities Act, discussed later in these materials.  

But FMLA protections do not each all workers. They are limited by the size of the employer (minimum of 50 employees) and the longevity of the employment relationship (at least 12 months, although the months need not be consecutive, plus at least 1250 hours of work in the prior year). As result of these requirements, only about 56 percent of employees are actually eligible for FMLA leave. See Employee and Worksite Perspectives of the Family and Medical Leave Act.

Workers must also be able to prove they have a  qualifying “serious” health condition. Occupational injuries or illnesses are treated the same as other serious health conditions. 

The FMLA creates two substantive rights: the right to take a leave (“interference” claims); and an anti-retaliation provision that protects employees from discrimination for exercising rights under the statute (“retaliation” claims).

With regard to the substantive right to take a leave:  “Interference” cases involve the failure of the employer to provide statutorily required leaves. The statute says that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” any right under the  FMLA. A failure to comply with the FMLA requirements, like a failure to comply with minimum wage and overtime requirements, does not require that the employer knowingly or intentionally deprive the employee of his or her rights under the statute.  No proof of intent is required.

With regard to complaints of retaliation: The “retaliation/discrimination” provisions of the law prohibit employers from discharging or discriminating against employees for “opposing any practice made unlawful” by the FMLA.  These cases are akin to the other kinds of retaliation cases we have already studied, and they are analyzed under the McDonnell Douglas and Hicks burden-shifting formulation involving the proving of discriminatory animus.  That is, for an employer to be held to have retaliated against someone for asserting rights under the statute, the plaintiff has to meet a burden of showing – through direct or circumstantial proof – that the employer was motivated to deprive the employee of his/her rights.  See, e.g., Smothers v. Solvay Chemicals, Inc., 740 F.3d 530 (10th Cir. 2014) (where employee violated a safety rule but was also taking intermittent FMLA leave for a serious health condition, court utilized McDonnell-Douglas analysis to determine motivation for discharge).

Enforcement & remedies: 29 USCA § 2617 governs enforcement and remedies. Employees can file administrative complaints with the U.S. Dep’t of Labor and civil actions in state or federal court; relief includes compensation lost as well as any actual monetary losses sustained as a result of the violation, liquidated damages doubling the amount of real losses (unless employer can prove it acted in good faith), attorneys fees and equitable relief including employment, reinstatement, and promotion. The Secretary of Labor can also bring the action, and this will affect the employee’s right to pursue the claim. The statute of limitations for the civil action is two years.

Detailed regulations governing the FMLA can be found at 29 C.F.R. Part 825.  

Employees may have other rights to time off.  These can include internal (non-mandatory) employers’ policies governing short term disability benefits or absence, as well as some protection that workers have under specific laws (e.g. workers’ compensation).  The FMLA does not extend or build on top of these other rights.  That is, time off under other programs counts toward the 12 weeks of leave time provided by the FMLA.  The FMLA provides a floor for qualifying individuals with qualifying conditions, but nothing more.  If an employer has a program that already provides for the full 12 weeks, employees did not gain from the guarantees under the FMLA – except that, if a covered employer rescinds its own policy, the qualifying employees would have the benefit of the FMLA floor. 

COFFEY, Circuit Judge.

On May 4, 1998, the Equal Employment Opportunity Commission (EEOC) filed a single count complaint in the Northern District of Illinois against the Defendant Appellee Yellow Freight System, Inc., alleging violations of the Americans with Disabilities Act based on Michael Nicosia's, an employee of Yellow Freight, HIV/AIDS disability.  Specifically, the EEOC alleged that Yellow Freight terminated Nicosia because of his AIDS related cancer and in retaliation for Nicosia's filing of a complaint with the EEOC. Upon the defendant's motion, the district court granted summary judgment in favor of Yellow Freight. We affirm.

Nicosia began his career with Yellow Freight in August of 1990 as a dockworker at the company's Chicago Ridge, Illinois, Terminal. At that time, Yellow Freight, a trucking services company, employed some 550 dockworkers who loaded and unloaded freight trailers, checked the pieces count, and weighed shipments. Initially, Nicosia was a “casual worker” for the company. …In February 1991, Nicosia was elevated to a full-time dockworker.  As a fulltime dockworker at the Chicago Ridge Terminal, Nicosia was supervised by Gerald Sendziol. Sendziol was responsible for making decisions at the terminal with respect to leaves of absence and whether or not to terminate a particular employee.

It is important to note that Yellow Freight has a five-step progressive discipline procedure to deal with employees who accumulate numerous and excessive absences. Pursuant to the system, an employee who violates the company's attendance policy would be subject to the following five steps: 1) a coaching session; 2) a letter of information; 3) a written warning; 4) suspension; and finally 5) termination. It is undisputed that since 1992 Yellow Freight has terminated over 90 employees pursuant to its progressive disciplinary system for excessive absenteeism.

To say that Nicosia's attendance record was woeful is somewhat of an understatement. In 1991, Nicosia's first year as a full-time employee with Yellow Freight, he was scheduled to work 113 days, but left work early two times for illness and called in sick thirty-seven times.  In 1992, his work attendance record was not much better when, out of 171 scheduled work days, he left work early because of an illness on one occasion, and took three personal days and twelve sick days. In the following year, Nicosia was absent from work more than half of the 242 days that he was assigned to work (126 absences for illness, left work early four times, and three unexcused absences). In 1994, out of 227 scheduled work days, he took another forty-seven sick days, left work early three times, and had three unexcused absences.

In November of 1995, Nicosia called Sendziol and told his supervisor that he needed time-off for an unspecified medical problem.  Sendziol told him that he was ineligible for family and medical leave, but that he could take a 90-day unpaid leave of absence. Presumably because Nicosia did not want to be gone that long, he decided to call in sick for the next two weeks.

In December 1995, Nicosia was diagnosed as HIV positive. In January 1996, Nicosia's condition deteriorated and he was diagnosed with Kaposi's sarcoma, an AIDS-related cancer. On January 12, 1996, Nicosia sent a letter to Sendziol informing the company of his medical condition.

After being diagnosed with Kaposi's sarcoma, Nicosia's work attendance plummeted even further in 1996. In fact, he called in sick every working day during the months of January, February, and March. As a result of Nicosia's poor attendance, Yellow Freight initiated its progressive disciplinary system.

On June 14, 1996, the company initiated step one (coaching session) with Nicosia. On June 24, 1996, the company sent Nicosia a letter of information (step two). Nicosia responded to the letter of information with the following letter addressed to Sendziol and dated June 26, 1996:

I had advised you of my terminal illness on January 12, 1996 by messenger service. I have rights due to this illness under the Americans with Disabilities Act. Every time I have been off work due to illness, my doctor has faxed you medical documentation.

After another series of absences, Yellow Freight issued a written warning (step three) on July 15, 1996. Nicosia responded with a letter stating that he had been diagnosed with cancer.

The company then sent Nicosia an ADA accommodation review form along with a letter stating that Yellow Freight understood that Nicosia was requesting an accommodation under the ADA. The form required that Nicosia list his condition, describe the accommodation, if any, he was requesting, and to identify his treating physicians and medical providers.

Despite receiving the form, Nicosia failed to comply and fill it out. Instead, he returned the uncompleted form along with a letter. In the letter, Nicosia stated that he was “requesting no particular considerations at this time other than the resources necessary to perform my job and reasonable accommodations necessary to monitor and maintain my health status.” He also stated that he wanted “sick days, if needed[,] without being penalized.” Finally, he stated that he was “working” to perform the responsibilities and duties of a dockworker.

After Nicosia missed 10 out of the next 19 calendar days, the company proceeded to step four and suspended Nicosia for one day on August 5, 1996. In response to the suspension, Nicosia sent a letter promising to “report to work every day to fulfill my duties.”

On October 15, 1996, Nicosia filed charges with the EEOC claiming that Yellow Freight had disciplined him because of his disability and also that it had denied him a reasonable accommodation. As noted earlier, the company terminated Nicosia on December 16, 1996, for excessive absenteeism.    Following his termination, Nicosia filed a second charge with the EEOC alleging that he had requested an accommodation, had been denied an accommodation, and that he was illegally discharged. He also alleged that Yellow Freight had retaliated against him for filing his October 15th EEOC charges.

On May 4, 1998, the EEOC filed suit against Yellow Freight claiming that the freight company had discriminated against Nicosia in violation of the ADA and, furthermore, that it had retaliated against Nicosia for his filing of a complaint with the Commission. … Nicosia intervened in the suit.

On August 12, 1999, the trial judge granted summary judgment in favor of Yellow Freight and concluded that: 1) Nicosia was not a “qualified individual” under the ADA; 2) regular attendance at the job site was an “essential function of Nicosia's job”; 3) Nicosia's request for “sick days, if needed [,] without being penalized” was not reasonable as a matter of law; and 4) there was no causal connection between Nicosia's filing of an EEOC complaint and his termination. Nicosia, not the EEOC, appeals.

ANALYSIS

The ADA mandates that:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.  42 U.S.C. § 12112(a).

The law also requires that “[t]he plaintiff bears the burden of proof on the issue of whether he is a ‘qualified individual’ under the ADA.” Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir.1998). Furthermore, to establish a prima facie case under the ADA, Nicosia must demonstrate that he is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); see Feldman v. American Mem'l Life Ins. Co., 196 F.3d 783, 789-90 (7th Cir.1999). Thus, the critical question is whether an “essential function” of Nicosia's regular full-time position with Yellow Freight was regular attendance, and if so, did he fulfill that “essential function.” Also, the fact that [Yellow Freight] had infinite patience [with regard to Nicosia's poor attendance] does not necessarily mean that every company must put up with employees who do not come to work. Nor must every company hire replacements for absent employees and call that a reasonable accommodation. The issue before us is, when is enough, enough? Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir.1999).

At the outset, let us be clear that our court, and every circuit that has addressed this issue, has held that in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. The fact is that in most cases, attendance at the job site is a basic requirement of most jobs. As the Tyndall court put it:

[A]n evaluation of the quality of Tyndall's performance does not end our inquiry. In addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis. Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee “who does not come to work cannot perform any of his job functions, essential or otherwise.”

Id. at 484-85.

While Waggoner made clear that “[w]e are not establishing a hard-and-fast rule that no absences from work need be tolerated,” it also made clear that no business is “obligated to tolerate erratic, unreliable attendance.” Id. at 485 (citing Haschmann, 151 F.3d at 601). Indeed, “the absence of employees is disruptive to any work environment. However, it is not the absence itself but rather the excessive frequency of an employee's absences in relation to that employee's job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job.”  Haschmann, 151 F.3d at 602.

In Jovanovic, 201 F.3d at 899-900, this court dealt with a case similar to the one at hand:

Common sense dictates that regular attendance is usually an essential function in most every employment setting; if one is not present, he is usually unable to perform his job. This is especially true in factory positions, such as Jovanovic's, where the work must be done on the employer's premises; maintenance and production functions cannot be performed if the employee is not at work.

Nicosia's employment with Yellow Freight is similar to the factory worker in Jovanovic in that his job as a forklift driver “must be done on the employer's premises.” Id. And, it is undisputed that “the ability to maintain good attendance” and the ability “to work on” available shifts “plus any required overtime” were listed as “minimum qualifications” in the Yellow Freight material given to all employees, including Nicosia, describing the full-time dockworker position.

Furthermore, it is undisputed that Nicosia was a full-time employee and not a casual, temporary, part-time, or substitute employee, nor did he ever have the discretion or the right to decline work when he chose to do so. While Nicosia began his employment with Yellow Freight as a part-time employee, he was elevated to a full-time position as the result of seniority, training, and experience, and had an assigned, definite, and specific work schedule.

Turning to the question of whether Nicosia was fulfilling the essential requirements of his job (regular job attendance), the undisputed facts reveal that he was not. As previously discussed, the record reflects that Nicosia was disciplined by Yellow Freight (as were some 90 chronically absent employees before him) well before he informed Yellow Freight that he had been diagnosed with AIDS-related cancer on January 12, 1996. In fact, from 1991 through 1993, his employer warned Nicosia on six separate occasions that his work attendance record was not only substandard but also unacceptable. Furthermore, in 1994 and 1995, Nicosia received four “coaching sessions” and five letters (three letters of information and two written warnings) regarding his pattern of excessive absenteeism. Because the company had a policy of allowing workers to start at step one if they completed nine months of continuous employment without receiving a disciplinary action, there were few opportunities for Yellow Freight to initiate steps four (suspension) and five (termination) before 1996.

The unchallenged record in this case reflects that Yellow Freight bent over backwards to accommodate Nicosia in spite of his long history of poor work attendance. Nicosia was repeatedly warned and reprimanded, and given numerous opportunities to improve his work attendance record. It was Nicosia's woeful attendance record that forced Yellow Freight into the position that it could no longer justify Nicosia's employment.

As we have stated in a number of discrimination cases, “our role is not to second guess the business decisions of a company and inquire as to whether the goals set by management demand ‘too much’ from its employees, nor to make things less difficult for those who come before us, regardless of the law.” Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1091 (7th Cir.2000) (citation and internal quotations omitted).   After reviewing the record and considering Nicosia's poor attendance record, we are convinced that Nicosia was unable to, and failed to, satisfy his burden of establishing that he is a “qualified individual” under the ADA. We thus hold that Yellow Freight is entitled to summary judgment.

With respect to the question of reasonable accommodation, Nicosia, in an August 1, 1996 letter to Yellow Freight, stated that he was requesting “no particular considerations at this time other than the resources necessary to perform my job and reasonable accommodations necessary to monitor and maintain my health status, which would include sick days, if needed[,] without being penalized.” Here again, the employee has the burden of “produc[ing] sufficient evidence to establish a genuine issue of material fact as to his ability to perform the essential functions of the job with reasonable accommodation.” Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir.1996).

This court has held that similar requests for unlimited “sick days, if needed[,] without being penalized,” are not reasonable as a matter of law. See, e.g., Waggoner, 169 F.3d at 485 (denying a request for an accommodation for unlimited time off by a production employee who was absent or tardy forty times in her 20 month tenure). Additionally, businesses are “not obligated to tolerate erratic, unreliable attendance or to provide an accommodation which would impose an undue hardship on the business.” Id. As this court has stated,

[W]e do not dispute that a business needs its employees to be in regular attendance to function smoothly; the absence of employees is disruptive to any work environment. However, it is not the absence itself but rather the excessive frequency of an employee's absences in relation to that employee's job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job. 

Haschmann, 151 F.3d at 602.

It is interesting to note that Yellow Freight, in an attempt to alleviate Nicosia's work attendance problems, offered Nicosia an opportunity to take a 90-day leave of absence (which he refused to accept), and followed-up by sending him an ADA accommodation review form (which he refused to fill out). Nicosia responded to this attempt by sending a certified letter, including the uncompleted accommodation form, stating that he had received the accommodation form and was requesting, as stated before, an open-ended, unlimited amount of “sick days, if needed[,] without being penalized.” According to Nicosia, he refused to complete the accommodation form because he “was requesting  ... sick time due to ... illness, and really didn't see that on [the] form” and thought the letter he sent in response “would explain more.”

In Jovanovic, 201 F.3d at 899 n. 9, this court noted that

[T]he only imaginable accommodation would be an open-ended schedule that would allow Jovanovic to come and go as he pleased. We would be hard-pressed to imagine a manufacturing facility that could operate effectively when its employees are essentially permitted to set their own work hours, and we thus reject such a schedule as an unreasonable accommodation under the circumstances of this case. See Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir.1999) (holding “as a matter of law” that employee's desire “to miss work whenever she felt she needed to and apparently for so long as she felt she needed to” was not a reasonable accommodation for someone employed as a production worker).

…In any event, we are of the opinion that under the established law of this circuit, Yellow Freight's efforts during the “accommodation process” were sufficient, especially given Nicosia's unreasonable request for unlimited time off….We refuse to force employers to the negotiating table in the face of demands of this nature, and hold that Yellow Freight fulfilled its burden under the law, especially in light of the fact that Nicosia had fashioned a poor attendance record for himself well before he was diagnosed with AIDS. …To hold otherwise would unreasonably expand the reaches of the ADA and ignore the plaintiff's burden to demonstrate that he is a “qualified individual.” Although the plaintiff's medical condition is most unfortunate, we are convinced that Nicosia does not have a remedy under the ADA.

DIANE P. WOOD, Circuit Judge, with whom RIPPLE, ILANA DIAMOND ROVNER, and WILLIAMS, Circuit Judges, join, dissenting in part and concurring in part.

Here is what the summary judgment evidence showed. The collective bargaining agreement (“CBA”) between Yellow Freight and its regular employees provided that employees would be entitled to five paid sick days per year. In addition, the CBA provided for family and medical leave of up to a total of twelve weeks on unpaid leave for employees who had worked for the company a minimum of 12 months and 1250 hours during the prior 12-month period. The CBA also allowed employees to apply for leaves of absence that could last up to 90 days, with the possibility of extensions “for like periods.” The CBA set no minimum number of days for a leave of absence, although the record indicated that Sendziol told Nicosia that there was a 90-day minimum. When an employee was out on a leave of absence, Yellow Freight filled in using both its casual workers and the bottom 10 percent of its seniority list.

Thus, construing the CBA favorably to Nicosia, it was easily possible for someone to be absent well in excess of the five days of paid sick leave. Furthermore, Nicosia presented additional testimony that the majority has ignored that showed that Yellow Freight's approach to attendance was far from strict. …  Nicosia had a poor attendance record, but his problems did not prompt Yellow Freight to move beyond step 3 of its progressive disciplinary policy until after he informed Sendziol that he was ill. …

Since the importance of attendance lies at the heart of this case, I begin with some general comments about that question. I agree entirely with the majority that… regular attendance at the job is a legitimate requirement for many positions. On the other hand, as it concedes, this rule applies “in most instances,” Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir.1999), or “usually,” Jovanovic v. In-Sink-Erator, 201 F.3d 894, 899-900 (7th Cir.2000). The majority does not rely upon a single case for the proposition that attendance is always, invariably, as a matter of law, an essential job function. Even more importantly, I do not understand it to be adopting such a rigid and indefensible rule in the present case.

Each job carries with it different requirements, and in certain out-of-the-ordinary situations regular daily attendance may not be one of them. For example, while regular attendance may be crucial for a position as a high school teacher, see Nowak v. St. Rita High School, 142 F.3d 999 (7th Cir.1998), it would not necessarily be important for someone who worked as a substitute teacher. In exchange for the certain salary and benefits regular teachers enjoy, substitutes may have the flexibility of declining work when they choose to do so. The same might be true of a person whose job involved piecework to be done at the home, who needed to report to the central jobsite only to drop off completed work and to pick up new projects. People who work for temporary help agencies may also not be obligated to be available at every call; their only “penalty” would be the lost income attributable to the declined work. The question before us is whether Nicosia has raised a genuine issue of material fact on the question whether Yellow Freight's regular dockworker job was (a) one of the ordinary jobs for which the company insisted on regular attendance, or (b) one of the unusual jobs for which regular attendance was not a sine qua non.

In my opinion, Nicosia has succeeded in doing so, both with respect to the existence of a defined attendance policy at Yellow Freight and with respect to the content of any such policy. It is worth remembering that this court has recognized in other cases that the existence or  content of a policy is sometimes a contestable issue. …

The majority is quite correct to note that Yellow Freight has pointed to evidence that, if believed by the jury and given the weight Yellow Freight thinks it deserves, would show that attendance was indeed a requirement of the fulltime dockworker job and thus that failure to maintain regular attendance was a legitimate, nondiscriminatory reason for employee terminations. But Nicosia has evidence on the other side. He showed that the numbers of workers on the dock varied greatly from day to day; that workers were basically fungible with one another, so that it did not matter who was doing the loading and unloading on any particular day; that Sendziol did not follow any fixed policy other than to treat each case individually, giving very lengthy leaves to people he found deserving; and that his poor attendance was never an insurmountable problem until the company found out he was HIV positive.

If the trier of fact believed Nicosia's evidence, it would find that Nicosia's attendance did not violate Yellow Freight's actual policies. Contrary to the majority's view, such a holding would be consistent with established precedent in this circuit, as well as in the others. In addition, the timing of Yellow Freight's sudden decision to escalate its response to Nicosia's problematic attendance from step 3 (where it had always stopped before) to steps 4 and 5, at the very moment when Nicosia revealed his illness …  is suspicious enough to indicate that Yellow Freight's stated reason for terminating him was pretextual. I would therefore hold that Nicosia is entitled to go forward with his basic claim of discrimination in violation of the ADA.

McKEAGUE, Circuit Judge.

The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or job schedule—of their choosing. Jane Harris, a Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week. Ford denied her request, deeming regular and predictable on-site attendance essential to Harris’s highly interactive job. Ford’s papers and practices—and Harris’s three past telecommuting failures—backed up its business judgment.

Nevertheless, the federal Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris by denying her telecommuting request and retaliated against her for bringing the issue to the EEOC’s attention. The district court granted summary judgment to Ford on both claims. We affirm.

The Ford Motor Company employs about 224,000 employees worldwide. True to its founder’s vision, Ford uses its employees in assembly lines to perform independent yet interconnected tasks. Resale buyers of steel come early on the lines—before any assembling begins. They purchase raw steel from steel suppliers and then, as their name suggests, resell the steel to parts manufacturers known as “stampers.” The stampers then supply the steel parts to the vehicle assemblers, who put together the vehicles.

As an intermediary between steel and parts suppliers, the resale buyer’s job is highly interactive. Some of the interactions occur by email and telephone. But many require good, old-fashioned interpersonal skills. During core business hours, for example, resale buyers meet with suppliers at their sites and with Ford employees and stampers at Ford’s site—meetings that Ford says are most effectively performed face to face. And Ford’s practice aligns with its preaching: It requires resale buyers to work in the same building as stampers so they can meet on a moment’s notice. This high level of interactivity and teamwork is why, in Ford’s judgment, “a resale buyer’s regular and predictable attendance in the workplace” is “essential to being a fully functioning member of the resale team.” R. 60–2 at ¶ 11.

A former Ford resale buyer with irritable bowel syndrome takes center stage in this case: Jane Harris. Her job performance was, on the whole, subpar. Early on in her six-plus year tenure, she won a few awards, and Ford recognized her for her “strong commodity knowledge” and “diligent[ ]” work effort. R. 66–2 at 2; R. 60–14 at 6. But over time, the awards and compliments morphed into low ratings and criticisms. Harris placed in the bottom 22% of her peer group in her fourth full year (2007) and in the bottom 10% in her fifth year (2008). It got worse. By her last year (2009), Harris “was not performing the basic functions of her position.” R. 60–2 at ¶ 14. Ford said she lacked interpersonal skills, delivered work late, didn’t show a concern for quality, and failed to properly communicate with the suppliers. She again ranked in the bottom 10% of her peers.

In addition to performing poorly while at work, she repeatedly missed work entirely. In 2008, she missed an average of 1.5 work days per week; in 2009, she was absent more than she was present. And when she didn’t miss work, she would often come in late and leave early. As her coworkers and supervisors put it, Harris worked on a “sporadic and unpredictable basis,” R. 60–8 at ¶ 4, and had “chronic attendance issues,” R. 60–2 at ¶ 8; R. 60–4 at ¶ 3.

Harris’s poor performance and high absenteeism harmed those around her. When she missed work, her teammates had to pick up the slack, including by taking on the functions that Harris could not perform at home. Her supervisors also had to assume her job responsibilities. Her absences caused the resale-buyer team “stress and frustration,” R. 60–8 at ¶¶ 4–5, further compounded Harris’s mistakes, and frustrated suppliers.

Harris’s irritable bowel syndrome of course contributed to the situation. It gave her uncontrollable diarrhea and fecal incontinence, sometimes so bad that “it” could “start[ ] pouring out of [her]” at work. R. 41–4 at 1. She occasionally couldn’t even make the one-hour drive to work without having an accident. The vicious cycle continued, as her symptoms increased her stress, and the increased stress worsened her symptoms—making her less likely to come to work.

Ford tried to help. Harris’s first supervisor, Dawn Gontko, for example, adjusted Harris’s schedule to help her establish regular and predictable attendance. Most significantly, Gontko allowed Harris two opportunities to “telecommute on an ad hoc basis” in an “Alternative Work Schedule.” R. 60–3 at ¶ 3. Under this schedule, Harris worked four 10–hour days (known as flex time) and could telecommute as needed on her work days. Each trial lasted one to two months. But neither succeeded: Despite the ad hoc telecommuting and flexible schedules, Harris “was unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.” Id.; R. 60–7 at 2.

Ford next tried its “Workplace Guidelines”—a reporting tool specially designed to help employees with attendance issues tied to illnesses. These also failed to improve Harris’s attendance or illness. So did the efforts of Harris’s next supervisor, John Gordon, which included allowing Harris to telecommute both during and after core business hours. R. 60–2 at ¶ 8. When this third telecommuting attempt failed, the act repeated itself: The new supervisor, like the old, employed the “Workplace Guidelines,” and the guidelines again failed to remedy Harris’s attendance problems or illness.

Undeterred by these three failed telecommuting attempts, Harris requested leave “to work up to four days per week from home.” R. 60–10 at 1. Gontko had told her, after all, that her job would be appropriate for telecommuting. Ford’s telecommuting policy generally said the same thing. And several of her coworkers telecommuted. So why couldn’t Harris?

Ford’s practice and policy limited telecommuting for resale buyers. In practice, Ford’s buyers telecommuted, at most, on one set day per week. That aligned with its policy, which makes clear that those jobs that require “face-to-face contact”—and those individuals who were not “strong performers” and who had poor time-management skills—were among those not “appropriate for telecommuting.” R. 60–11 at 4.

Before making a decision on the request, two of Ford’s human-resources representatives and Gordon met with Harris. In the meeting, Gordon went through Harris’s ten main job responsibilities and asked Harris to comment on how she could perform those tasks from home. Of the ten tasks, Harris admitted that she could not perform four of them from home, including meetings with suppliers, making price quotes to stampers, and attending some required internal meetings. Harris added, however, that she did not envision needing to stay home four days per week, only that she wanted the freedom of “up to 4 days.” R. 66–10 at 3 (emphasis added). Harris’s higher-ups told her that they would get back to her about her request.

Ford determined that Harris’s proposed accommodation was unreasonable. Management met with Harris to inform her of the decision. Gordon again listed Harris’s ten job responsibilities: four that could not be performed at home; four that could not effectively be performed from home; and two that were “not significant enough to support telecommut[ing].” Id. at 4–5. Gordon explained the circumstances under which telecommuting could work: on a predictable schedule where the strong-performing employee agrees to come to the worksite as needed even on days set for telecommuting. Harris’s coworkers who telecommuted fit that bill. But Harris didn’t, and neither did her proposed schedule.

Even though Ford did not grant her requested telecommuting schedule, management told Harris that they could accommodate her in other ways, such as moving her closer to the restroom or looking for jobs better suited for telecommuting. Harris turned down each alternative accommodation…

The rest of Harris’s time at Ford did not go well….  After several years of subpar performance and high absences, this was apparently the last straw: Mike Kane (the Senior Purchasing Manager for Raw Materials) and Lisa King (his manager) decided to terminate Harris on September 10, 2009.

Almost two years later, on August 25, 2011, the EEOC sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris’s disability (violating 42 U.S.C. § 12112(a), (b)(5)(A)), and that it discharged her in retaliation for filing her charge (violating 42 U.S.C. § 12203(a)). On June 29, 2012, Ford moved for summary judgment.…

Many disabled individuals require accommodations to perform their jobs. The ADA addresses this reality by requiring companies like Ford to make “reasonable accommodations to the known ... limitations of an otherwise qualified individual with a disability” where such an accommodation does not cause the employer “undue hardship.” 42 U.S.C. § 12112(b)(5). To comply with the ADA, then, Ford must “reasonabl[y] accommodat[e]” Harris (undisputedly a disabled individual for purposes of this appeal) if she is “qualified.” §§ 12112(a), (b)(5) (emphasis added); see Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir.1997).

To be “qualified” under the ADA, Harris must be able to “perform the essential functions of [a resale buyer]” “with or without reasonable accommodation.” 42 U.S.C. § 12111(8). A “reasonable accommodation” may include “job restructuring [and] part-time or modified work schedules.” Id. at § 12111(9)(B). But it does not include removing an “essential function” from the position, for that is per se unreasonable. Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir.1998); see Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). The district court held that Harris was not qualified because her excessive absences prevented her from performing the essential functions of a resale buyer. We agree.

Is regular and predictable on-site job attendance an essential function (and a prerequisite to perform other essential functions) of Harris’s resale-buyer job? We hold that it is.

We do not write on a clean slate. Much ink has been spilled establishing a general rule that, with few exceptions, “an employee who does not come to work cannot perform any of his job functions, essential or otherwise.” EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 948 (7th Cir.2001) (en banc) (quoting Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir.1994) (internal quotation marks omitted)). We will save the reader a skim by omitting a long string-cite of opinions that agree, but they do. E.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237–38 (9th Cir.2012) (collecting cases); Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1122–24 (10th Cir.2004) (same). Our Circuit has not bucked the trend. E.g., Ameritech, 129 F.3d at 867. And for good reason: “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” Rauen v. U.S. Tobacco Mfg. L.P., 319 F.3d 891, 896 (7th Cir.2003).

That general rule—that regularly attending work on-site is essential to most jobs, especially the interactive ones—aligns with the text of the ADA. Essential functions generally are those that the employer’s “judgment” and “written [job] description” prior to litigation deem essential. See 42 U.S.C. § 12111(8). And in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees (as evidenced by its words, policies, and practices).

The same goes for the EEOC’s regulations. They define essential functions as those that are “fundamental” (as opposed to “marginal”), 29 C.F.R. § 1630.2(n)(1), so that a job is “fundamentally alter[ed]” if an essential function is removed. 29 C.F.R. § Pt. 1630(n), App. at 394. To guide the essential-function inquiry, the regulations speak in factors—seven of them. The first two restate the statutory considerations. 29 C.F.R. § 1630.2(n)(3)(i)-(ii). The remaining five add other considerations. 29 C.F.R. § 1630.2(n)(3)(iii)-(vii). In many jobs, especially the interactive ones, all seven point toward finding regular and predictable on-site attendance essential. Take the amount of time performing that function, for example, § 1630.2(n)(3)(iii): Most of one’s work time is spent at work, and many interactive functions simply cannot be performed off site. Or take the consequences of failing to show up for work, § 1630.2(n)(3)(iv): They can be severe. See Equal Employment Advisory Council Supp. Br. 9. Ditto for the terms of the collective bargaining agreement, § 1630.2(n)(3)(v): They certainly won’t typically exempt regular attendance. Other employees’ work practices are no different, § 1630.2(n)(3)(vi)-(vii): Other employees usually attend work at the worksite. And so on, such that most jobs would be fundamentally altered if regular and predictable on-site attendance is removed.

The EEOC’s informal guidance on the matter cuts in the same direction. An employer may refuse a telecommuting request when, among other things, the job requires “face-to-face interaction and coordination of work with other employees,” “in-person interaction with outside colleagues, clients, or customers,” and “immediate access to documents or other information located only in the workplace.” EEOC Fact Sheet, Work At Home/Telework as a Reasonable Accommodation (Oct. 27, 2005), http://www.eeoc.gov/facts/telework.html; cf. EEOC, Employer Best Practices for Workers with Caregiving Responsibilities, http://www.eeoc.gov/policy/docs/caregiver-best-practices.html (Jan. 19, 2011) (explaining that “impromptu team meetings” are a valid factor for denying an employee the privilege to work in a flexible work schedule). That is because, as the EEOC elsewhere explains, “the inquiry into essential functions is not intended to second guess an employer’s business judgment with regard to production standards.” 29 C.F.R. § Pt. 1630(n), App. at 395. Nor is it meant “to require employers to lower such standards.” Id. But that’s what would happen in many jobs if regular, in-person attendance was not required.

A sometimes-forgotten guide likewise supports the general rule: common sense. Waggoner v. Olin Corp., 169 F.3d 481, 482–84 (7th Cir.1999). Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job. Webster’s Third New International Dictionary 777, 920 (1986) (defining “essential” and “function”). But equipped with a 1400–or–so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult. Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

That rule has straightforward application here: Regular and predictable on-site attendance was essential for Harris’s position, and Harris’s repeated absences made her unable to perform the essential functions of a resale buyer .. It follows that Harris’s up-to-four-days telecommuting proposal-which removed that essential function of her job—was unreasonable. Brickers, 145 F.3d at 850; Mason, 357 F.3d at 1124. The employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 202 (6th Cir.2010); accord Dissent Op. at ––––. Harris proposed only one accommodation—one that would exempt her regular and predictable attendance from her resale-buyer job. In failure-to-accommodate claims where the employee requests an “accommodation that exempts her from an essential function,” “the essential functions and reasonable accommodation analyses [ ] run together.” Samper, 675 F.3d at 1240. One conclusion (the function is essential) leads to the other (the accommodation is not reasonable). That’s this case. Harris’s proposed accommodation was unreasonable….

The EEOC sees it differently. It argues that three sources—(1) Harris’s own testimony, (2) other resale buyers’ telecommuting practices, and (3) technology—create a genuine dispute of fact as to whether regular on-site attendance is essential. But none does. [lengthy analysis of the facts regarding these arguments is omitted]

…  To sum up, the EEOC must prove that Harris is a “qualified individual,” which means she can perform the essential functions of a resale buyer with a reasonable accommodation. The record shows that Harris cannot regularly and predictably attend the workplace—an essential function, and a prerequisite to other essential functions—even with the past reasonable accommodations of telecommuting trials and specialized plans to improve her attendance. And Harris’s proposed unpredictable, ad hoc telecommuting schedule was not reasonable because it would have removed at least one essential function from her job. Harris is unqualified as a matter of law, and the district court correctly granted summary judgment on this claim.

KAREN NELSON MOORE, Circuit Judge, dissenting.

This case concerns one person, Jane Harris, her job as a resale buyer at one Ford work-site, and the particularly difficult challenges she faces as a result of her medical condition of irritable bowel syndrome (“IBS”). She argues that Ford failed reasonably to accommodate her disability when it refused her request to telework some days each week. At this moment, this case is not even about whether Harris should prevail against Ford. The question is simply whether she has presented enough evidence to create a genuine dispute of material fact such that summary judgment for Ford is not proper.

The key issue is whether Harris is a qualified individual to bring a discrimination claim under the ADA. 42 U.S.C. § 12111(8); id. § 12112(a). In this case, this requires showing that either physical presence at the work-site is not an essential function of Harris’s job as a resale buyer, or relatedly, that telework is a reasonable accommodation for Harris. The ADA and the EEOC regulations implementing the statute provide courts with a non-exhaustive list of seven factors to help guide our consideration of these issues. 29 C.F.R. § 1630.2(n)(3). But the overarching focus of those regulations is that “[w]hether a particular function is essential is a factual determination that must be made on a case by case basis.” 29 C.F.R. § 1630, app. § 1630.2(n). And because this case is an appeal from a grant of summary judgment, this intensive factual determination must be undertaken while “view [ing] all evidence in the light most favorable” to Harris. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir.2007).

I dissent because the majority refuses to engage in the fact-intensive, case-by-case determination required by the EEOC regulations and repeatedly refuses to take the facts in the light most favorable to Harris, as summary judgment requires. When we apply both standards properly, the EEOC has presented sufficient evidence to dispute whether Harris is a qualified individual, either because physical presence is not an essential function of her job or because telework is a reasonable accommodation for her. …

I. ANALYSIS

A. Harris’s request to telework

It is crucial to begin with what Harris actually requested….  The key point is that Harris proposed to be out of the office up to four days each week, not four days per week, every week. The relevant questions in this case are therefore whether physical presence every day of the week is an essential function of Harris’s job, and whether telework some days each week is a reasonable accommodation.

B. The EEOC created a genuine dispute of material fact whether physical presence at the work-site is an essential function of Harris’s job.

I agree that we should consider Ford’s judgment that physical presence in the office is an essential function of Harris’s job. However, Ford gave only one reason for why physical presence is an essential function—that the resale buyer position requires a great deal of face-to-face teamwork. Ford did not and could not argue that Harris needed to be in the office to use key equipment or to provide services to outside clients, for example. What exactly is the teamwork that Ford claims must be performed face-to-face? Based on the limited record of this case, it appears to be two things: (1) spur-of-the-moment meetings to address unexpected problems in the supply chain, and (2) scheduled meetings. Appellee Supp. En Banc Br. at 9–10.

In contrast, the EEOC presented two pieces of evidence that directly contradict Ford’s claim that the teamwork functions of Harris’s job required her to be physically present in the office. First, Harris attested in her declaration that she actually performed 95% of her job on the phone or through email, even when in the office. Second, Ford allowed other resale buyers to telework. This suggests that, to perform effectively, resale buyers do not need to be prepared to handle unexpected problems in the supply chain through face-to-face interactions every day of the week.

A reasonable jury might ultimately agree with Ford, or it might agree with Harris. The point is that there is a genuine dispute of material fact that only a jury should resolve.

1. Harris’s declaration

Harris’s sworn declaration directly contradicts Ford’s insistence that the teamwork required of resale buyers—both spur of the moment trouble-shooting and scheduled meetings—is actually done face-to-face. Harris attested that she performed 95% of her job duties electronically (on the computer or telephone), even when in the office…. She stated that Ford had “telephone conference call capabilities which would allow employees to engage in a meeting without actually having all the meeting stakeholders present in the same room,” and that “all internal meetings included the conference call attendance option.” Id. ¶¶ 7, 9 (Page ID # 1263) (emphasis added).

The majority dismisses Harris’s testimony because she does not say she could perform all of her duties “as effectively off-site.” Maj. Op. at ––––. But that focus certainly is not taking the evidence in the light most favorable to Harris, as the summary-judgment standard commands. Instead, the majority is actively looking for ways to read omissions—not even actual statements—in her testimony in the light least favorable to her….

What appears to be driving the majority’s unwillingness to give any weight to Harris’s own testimony is an unstated belief that employee testimony is somehow inherently less credible than testimony from an employer. Employers, just as much as employees, can give testimony about whether a particular function is essential that is “self-serving” or not grounded in reality. Our role is not to assess who is more credible. Rather, at the summary-judgment stage, we must take the evidence in the light most favorable to the nonmovant. As we recently explained, “[i]f an employer’s judgment about what qualifies as an essential task were conclusive, an employer that did not wish to be inconvenienced by making a reasonable accommodation could, simply by asserting that the function is essential, avoid the clear congressional mandate that employers mak[e] reasonable accommodations.” Rorrer v. City of Stow, 743 F.3d 1025, 1039 (6th Cir.2014) (internal quotation marks omitted) (second alteration in original)….

The gulf between Harris’s request and the telecommuting arrangements of other resale buyers, however, is not so wide or clear as the majority claims it is. …

 Ford’s own judgment that physical presence in the office is an essential function of Harris’s job certainly is entitled to consideration, but that judgment is not dispositive. In defining “[q]ualified individual,” the ADA states only that “consideration shall be given to the employer’s judgment as to what functions of a job are essential.” 42 U.S.C. § 12111(8) (emphasis added). Noticeably absent is the word “deference.” See Rorrer, 743 F.3d at 1042. The EEOC regulations interpreting this section similarly include the employer’s judgment as just one of seven factors courts should consider. 29 C.F.R. § 1630.2(n)(3). Yes, the EEOC regulations provide that “inquiry into the essential functions is not intended to second guess an employer’s business judgment with regard to production standards,” but they also state that “whether a particular function is essential ‘is a factual determination that must be made on a case by case basis [based upon] all relevant evidence.’” Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir.1998) (quoting 29 C.F.R. § 1630, app. § 1630.2(n)) (alterations in original). Other circuits also treat the employer’s judgment as just one factor to consider in assessing whether a particular function is essential. See, e.g., Rohan v. Networks Presentations LLC, 375 F.3d 266, 279 n. 22 (4th Cir.2004); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 25 (1st Cir.2002); Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir.2001).

The majority’s test for when an employer’s judgment that a function is essential can be overcome—if it is not “job-related, uniformly-enforced, [or] consistent with business necessity,” Maj. Op. at –––– —is thus not compelled by the ADA or the EEOC regulations. And in fact, the majority’s test is in direct tension with the regulations’ insistence that the inquiry is a fact-intensive, case-by-case determination.

Moreover, the majority’s insistence that the “general rule” is that physical attendance at the worksite is an essential function of most jobs does not advance the analysis in this case. In many of the cases cited by Ford for this proposition, the courts actually held that regular attendance is an essential function, while assuming (without deciding) that that regular attendance must be at the physical worksite. See, e.g., Vandenbroek v. PSEG Power CT LLC, 356 Fed.Appx. 457, 460 (2d Cir.2009); Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 966 (8th Cir.2006); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir.1998). When courts have addressed the issue, the record had, in fact, established that the employee had to be physically present to access equipment or materials located only in the office, or to provide direct services to clients or customers. See, e.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1238–39 (9th Cir.2012) (neo-natal nurse who provided direct patient care); E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 949 (7th Cir.2001) (forklift operator); Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir.1998) (loan review analyst who used confidential documents that could not leave the office); Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir.1994) (teacher).

Here, in contrast, the sole reason given by Ford for why Harris needs to be physically present in the workplace is that the resale buyer position requires a high degree of face-to-face teamwork. Ford does not claim that necessary physical equipment or files can be accessed only on-site, or that Harris must interact with outside clients at Ford’s work-site.

… [N]either the general case law on physical presence at the work-site nor prior case law on teamwork resolves this case. Ford gave only one reason for why Harris’s physical presence at the worksite is an essential function of her job—that the resale buyer position requires a great deal of face-to-face teamwork. The EEOC presented two pieces of evidence that directly contradict this claim. Summary judgment is therefore not appropriate.

Finally, the majority’s claim that failure to grant summary judgment to Ford would turn telework into a “weapon” completely overstates the reach of this case and itself sets a problematic precedent for other failure-to-accommodate cases. First, providing telework is not just a good deed; sometimes it is legally required under the ADA. Second, in any given case, employees seeking telework as a reasonable accommodation partly on the basis that other employees are permitted to telework would need to show that those other employees have similar job duties to their own. They cannot point to just any employee. Here, Harris pointed to telework agreements of other resale buyers. More fundamentally, in assessing whether a function is essential, the EEOC regulations expressly invite courts to consider the experience of other employees “in similar jobs.” 29 C.F.R. § 1630.2(n)(3)(vii). Indeed, the majority’s test for whether a function is essential also requires assessing how the employer treats other employees. Thus, this kind of comparison is inevitable in order to evaluate properly many reasonable-accommodation claims. The majority would privilege Ford’s overstated perverse-incentives argument at the expense of properly and carefully assessing reasonable-accommodation claims as the ADA and the EEOC regulations require. Finally, I doubt that Ford and other employers would actually limit telework so drastically based on the slight risk that in certain reasonable-accommodation cases, the telework agreements of employees with similar job duties might be relevant. The majority ignores the myriad other reasons why employers might choose to provide telework to their employees, such as incentivizing individuals to come work for them or reducing the size of the physical workplace.

 …

That Harris had attendance issues does not make her request to telework unreasonable. Harris missed work because of her disability. As the Ninth Circuit has held, “[i]t would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir.2001). Moreover, Ford did not meet its burden to show that allowing Harris to telework would be an undue hardship….

There is a genuine dispute of material fact whether Ford sufficiently engaged in the interactive process to clarify Harris’s telecommuting request. The majority places an unreasonable and likely unachievable burden on employees to propose the perfect accommodation from the start of the process. That burden is directly at odds with the EEOC regulations’ insistence that both the employee and the employer have an obligation to participate in the interactive process and, through that participation, to develop and clarify whether a reasonable accommodation is possible. Ford did not seriously try to clarify Harris’s initial teleworking request, and instead focused on building a case for why she could not telework.

The ADA’s regulations state that, “[t]o determine the appropriate reasonable accommodation [for an employee,] it may be necessary for the [employer] to initiate an informal, interactive process with the [employee].” 29 C.F.R. § 1630.2(o )(3). We, along with many other circuits, have held that the employer’s duty to participate in the interactive process in good faith is mandatory. See, e.g., Kleiber, 485 F.3d at 871 (citing cases). …

Although the employee must trigger the interactive process by requesting a reasonable accommodation, an employee’s initial request does not need to identify the perfect accommodation from the start, as the majority seemingly requires. 29 C.F.R. § 1630, app. § 1630.9 …  A reasonable jury could find that Ford did not in good faith seek to clarify Harris’s telework request or explore whether some telework arrangement was feasible. …

Taking the facts in the light most favorable to Harris, Ford is more to blame for the breakdown of the interactive process than Harris. It is true that Ford met with Harris to discuss her request and proposed alternative accommodations, factors that courts have identified as indicators of “good faith” participation. See Taylor, 184 F.3d at 317. However, the EEOC persuasively argued that a reasonable jury could find that the alternatives Ford suggested were not reasonable accommodations because they did not address the problems Harris identified. Harris still might soil herself even in the shorter time it would take her to get to the restroom from a closer work cubicle. Moreover, it is unreasonable to respond that Harris could wear Depends or clean herself up after any accidents. Harris should not have to suffer the embarrassment of regularly soiling herself in front of her coworkers. … The real issue is that Ford chose to interpret Harris’s request to telework as a final offer, rather than as an opening bid. …

In sum, Ford did not seriously pursue an accommodation with Harris that addressed the key challenge she identified—physical presence every day of the week at Ford’s work site. Instead, Ford approached the discussion of telework from its first meeting with Harris by reading her request as expansively as possible and then narrowly focusing on why it would not work. Ford ignored Harris’s insistence that she had merely quoted the language of the telework policy and that she was open to more limited telework arrangements. Ford proposed two alternatives that did not address the problems Harris faced with her IBS and were not reasonable accommodations. After shutting down all further discussion of telework, Ford did not make any attempt to pursue further discussions with Harris in the interactive process. This is far from sufficient participation, and thus summary judgment should be denied on this basis as well….

1. Nicosia was reinstated to his position, despite his absences, by a labor arbitrator. Think about why an arbitrator might have reached this conclusion, given these facts.

2. There are instances in which the ADA’s provision for accommodation does include leaves of absence, as the dissents in these cases suggest. What do you think should be the reasonable parameters for this? Should it matter whether the employee is suffering from the aftermath of an occupational injury or disease, as opposed to a chronic or infectious disease or an injury that occurred away from work?

CHAMBERS, P.J.S.C.

This lawsuit is a wrongful termination case arising out of the employment of Michael Malone with the defendant Aramark Services, Inc.  Malone, a long-time employee of the defendant, was out of work due to a work related injury for a period of over a year. When he attempted to return to work, he was advised that his position had been filled and that no other position was available to him. As a result, he was discharged.  Independent of any rights he may have under the New Jersey Law Against Discrimination, the New Jersey Workers Compensation Law, and the federal Family and Medical Leave Act, plaintiff has moved to amend the complaint to add a separate and distinct cause of action for breach of a duty to hold Malone's job open him while he was out of work due to the work-related medical problem. The motion is denied, because no such cause of action exists under New Jersey law.

The factual background for this lawsuit is as follows. Defendant is in the business of providing food and cafeteria services to businesses, schools, hospitals and other facilities. Malone was the sole chef working at defendant's refinery account in Linden, New Jersey. This location is a small one for the defendant, serving 200 to 400 people, and Malone was the only chef working there, with no assistant chef or cook.

In December, 1994, Malone was placed on medical leave due to a work-related back injury, and he was unable to return to work until January 3, 1996, over a year later. In connection with the injury, he had back surgery in March, 1995 and knee surgery in June, 1995. He was out of work from December, 1994 to June, 1995 on accumulated 130 sick days. He was then out on unpaid medical leave from June, 1995 to September, 1995 and on additional unpaid medical leave from October 1, 1995 to December 9, 1995. During this time, defendant was provided with a series of doctor's notes which did not indicate with certainty when the plaintiff would be returning to work. (The note of April 19, 1995 indicated his estimated return to work date was July 1, 1995; the May 24, 1995 note stated he would return no earlier than July 1, 1995; the November 22, 1995 note said at least two more weeks pending a functional capacity evaluation; and, finally, the December 18, 1995 note indicated a January 3, 1996 return to work date.) On January 3, 1996, over a year after Malone left his job for medical reasons, he asked to return to work. At that time, he was advised that his position had been filled and that no other comparable position was available. Accordingly, he was terminated.

This lawsuit has been filed by the administratrix for the Estate of Michael Malone (Malone died of causes unrelated to this litigation), alleging violations of the New Jersey Law Against Discrimination, asserting a Woolley claim under Woolley v. Hoffmann–LaRoche, 99 N.J. 284, 491 A.2d 1257, as modified, 101 N.J. 10, 499 A.2d 515 (1985),  and claiming wrongful retaliation in violation of the workers' compensation law…

In addition to these claims, plaintiff is now seeking to add a claim for breach of a duty to hold a job open for a person out of work due to a medical condition. In the proposed amended complaint, plaintiff asserts that defendant had a “duty to keep Michael Malone's job with them open and /or available for him, so that Michael Malone could return to work when his injuries abated sufficiently to allow him to return to work or when it was otherwise appropriate for him to return to work.” …

The claim plaintiff is seeking to add to the complaint is not one recognized by New Jersey law nor does it make sense to create such a new cause of action. The plaintiff argues that New Jersey's public policy requires an employer to keep an injured employee's job open while the employee is recuperating from an injury, particularly where the injury is work-related. The plaintiff points to the New Jersey Law Against Discrimination, New Jersey Temporary Disability Law and the retaliatory prohibitions in the New Jersey Workers' Compensation Act. Certainly, all of these statutes provide particular protections to workers injured in the work place, and one can correctly say that it is the public policy of the State to provide workers the protections afforded in these statutes. However, plaintiff is seeking broader protections independent of the ones provided by these statutes, relying on the case of Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980). That case holds that an at will employee may not be terminated if the termination is contrary to a clear mandate of public policy. The employee must be able to identify a specific expression of public policy that is being violated. Id. at 72, 417 A.2d 505. While the public policy of New Jersey does accord injured workers significant protections and benefits, it does not accord them the breadth of job protection that the plaintiff is seeking here.

Under New Jersey law, an employee at will, such as Malone, can be discharged from employment for any reason whatsoever, with certain specified exceptions. With respect to an employee injured on the job as Malone was, the law accords that employee certain benefits and exceptions to the employee at will doctrine. For example, an employee may have certain contractual benefits that preserve his job while he is out on sick leave, either in accordance with a collective bargaining agreement or an employment contract. In addition, company policy may preserve an employee's job for him while he is out on sick leave under an implied contract theory as set forth in Woolley v. Hoffmann–LaRoche, supra. Indeed, one of the claims plaintiff is making in this case is a claim for benefits under a Woolley theory.

Federal law provides injured workers with additional job protections when out of work due to a work related injury under federal law. Under the federal Family and Medical Leave Act, 29 U.S.C.A. 2601 et seq., an employee such as Malone is allowed up to twelve weeks of leave due to an illness and may not be fired because of the inability to work during that time period. The New Jersey Family Leave Act, N.J.S.A. 34:11B–1 to 34:11B–16, is inapplicable since it provides a leave for care of injured or ill family members but does not deal with leaves due to the worker's illness. The New Jersey Temporary Disabilities Law is also inapplicable, since it provides benefits to disabilities that are not work-related or not covered by the workers compensation law N.J.S.A. 43:21–29.

Injured workers also have the protections afforded them under the laws prohibiting discrimination against the handicapped, namely the American Disabilities Act and the New Jersey Law Against Discrimination. Under the American Disabilities Act, a leave of absence from work in order to recuperate or receive treatment may be a reasonable accommodation. See, e.g., Criado v. IBM, 145 F.3d 437, 443 (1 Cir.1998). The extent of the leave will depend on the facts of case.  However, such a leave may not be indefinite or for an extended period of time. There is no blanket requirement that leaves be granted to such an extent that the employee will not be able to perform the job's essential functions. Walton v. Mental Health Ass'n, 168 F.3d 661, 671 (3 Cir.1999). Where leaves of absence were in excess of one year, courts have found the employees incapable of performing their essential job function. Micari v. Trans World Airlines, Inc., 43 F.Supp.2d 275, 281 (E.D.N.Y.1999). Under the New Jersey Law Against Discrimination, excessive absenteeism need not be accommodated even if it is caused by a disability otherwise protected by the Act. Svarnas v. AT & T Communications, 326  N.J.Super. 59, 740 A.2d 662 (App.Div.1999).

In the proposed cause of action which the plaintiff is seeking to assert, an employee would be entitled to an indefinite leave, a leave for as long as it takes to recover from the injury. This is a much broader right than that afforded under the laws prohibiting discrimination against the handicapped.

An employee injured on the job is entitled to workers compensation benefits. The New Jersey Workers Compensation Law N.J.S.A. 34:15–1, supra, provides employees with certain payments and medical care for work related injuries. An employer is prohibited from retaliation against a worker who seeks workers compensation benefits. N.J.S.A. 34:15–39.1. Retaliation in violation of the statute gives rise to a common law claim by the aggrieved worker for compensatory and punitive damages. Lally v. Copygraphics, 173 N.J.Super. 162, 413 A.2d 960 (App.Div.1980), aff'd 85 N.J. 668, 428 A.2d 1317 (1981). Accordingly, Malone has a viable cause of action against his employer if the employer retaliated against him by terminating his employment because Malone was seeking or obtained workers compensation benefits. Indeed, Malone has already filed such a claim. Thus, an amendment for that cause of action is not before this court.

Plaintiff is seeking more expansive job security for injured workers than offered by workers compensation law. Plaintiff maintains that as a matter of public policy the employer had a duty to hold his job open until Malone was able to return to work. In other words, plaintiff argues that, even if no retaliation occurred, the public policy behind the workers compensation law requires that the job be held open until the worker has recovered from the work related injury.

This argument, however, has previously been rejected by New Jersey courts. In Galante v. Sandoz, 192 N.J.Super. 403, 470 A.2d 45 (Law Div.1983), aff'd 196 N.J.Super. 568, 483 A.2d 829 (App.Div.1984), the plaintiff was terminated because he had accumulated absences in excess of those allowed by the employer. In that case, seventy-five percent of the employee's absences were attributable to a work-related injury. While plaintiff could not prove retaliation in violation of the workers' compensation statute, he maintained that terminating a worker due to absences caused by work related injuries violated the public policy behind the Worker's Compensation Law.  The court disagreed, finding that the Workers Compensation Law is insurance, providing compensation for losses without proof of fault. It does not entitle workers to have their jobs held for them until they recuperate from work related injuries.

It would be completely inappropriate in this instance for a court to further encroach into this sensitive area without a clear expression by the legislature. Thus, to expand the breadth of this statute, as the employee would have us do, to preclude the neutral application of an absence control policy by an employer to an employee who was once injured in a work related accident is to confer upon the employee a benefit not contemplated by the legislature; namely unlimited absences from work with impunity.

The holding in Galante v. Sandoz is consistent with the majority view in subsequent case law throughout the country. See Finnerty v. Personnel Board of City of Chicago, 303 Ill. App.3d 1, 303 Ill.App.3d 1, 236 Ill.Dec. 473, 707 N.E.2d 600 (1999) (an employer may fire an employee in Illinois for excessive absenteeism, even if the absenteeism is caused by a compensable injury); Weinzetl v. Ruan Single Source Transportation, Co., 587 N.W.2d 809 (Iowa Ct.App.1998) (termination of employment due to absenteeism caused by a work-related injury did not violate Iowa public policy); Barker v. Dayton Walther Corporation, 56 Ohio App.3d 1, 564 N.E.2d 738 (1989)(company policy that discharged all employees unable to work for six months, whether due to a work-related or non-work-related injury, did not violate Ohio public policy); Pierce v.. Franklin Electric Co., 737 P.2d 921, 925, (Okla.1987) (Oklahoma Workers Compensation Act, prohibiting retaliation against a worker who seeks workers compensation benefits, does not guarantee continued employment for the injured worker while recovering from the injury; the worker may be terminated due to absence from work; and, in so holding, the court noted that an “employer must operate economically and should be allowed to purchase the services his business requires.”) Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 416 S.E.2d 634 (1992)(South Carolina's workers' compensation statute does not give a worker a right to a reasonable period of time for rehabilitation after a work-related injury); Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn.1993) (Tennessee has a clear public policy protecting employees from termination for asserting a workers' compensation claim; here, however, an employee out on a work-related injury may be terminated where there is no connection between the claim for workers' compensation benefits and termination).

A case widely cited for this majority view is Duncan v. New York State Developmental Center, 63 N.Y.2d 128, 481 N.Y.S.2d 22, 470 N.E.2d 820 (1984). New York State also has a statute prohibiting discrimination against an employee who makes a workers' compensation claim. To violate the act, there must be a causal connection between the claim for workers' compensation benefits and the employer's conduct.  As a result, in the absence of evidence of retaliation, an employee could be discharged due to a lengthy absence caused by a work related injury without violating the workers' compensation law. A neutral employment policy applied to all employees does not violate the act, particularly where it is based on a legitimate business interest. The court explained the problems in permitting an employee to hold a position for an extended period of time, despite the employee's inability to perform the job due to an injury, writing:

An employer should be permitted to take reasonable steps to secure a steady, reliable, and adequate work force.... ‘The absence of a public employee from his position for a prolonged period unduly impairs the efficiency of an office or agency. In many cases, the duties of the absent employee must be absorbed by the remaining staff because temporary replacements are difficult to obtain. Continued performance of the business of government necessitates that there be a point at which the disabled officer may be replaced.’ These concerns are not diminished by the circumstances that the employee was injured on the job, rather than off. To forbid absolutely any detrimental treatment of an injured worker would transform section 120 into a job security clause, which is contrary to the Legislature's intent....

Id. at 135, 481 N.Y.S.2d 22, 470 N.E.2d 820 (citations omitted).

While the Duncan case dealt with a public employee, the reasoning applies to the private sector as well. See Weinzetl v. Ruan Single Source Transportation, supra.

Rejecting the majority view, one state has found that the right to time off from work to recover from a work related injury is implicit in its workers' compensation act. Lindsay v. Great  Northern Paper Co., 532 A.2d 151 (Me.1987). However, in that case there was a strong dissent relying on the Duncan case. While language in Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (Kan.1988) suggested that Kansas may also provide this broad protection to workers, that interpretation has been rejected by subsequent courts looking at Kansas law. See, e.g., Ramirez v. IBP, Inc., 913 F.Supp. 1421, 1436 (D.Kan.1995).  Similarly, in the California case of Judson Steel Corp. v. Workers Comp. Appeals Bd., 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564 (1978), an employee with a work-related injury was terminated after an absence of more than one year. The termination was found to be retaliation in violation of the workers compensation act because other workers in similar circumstances had been given extensions beyond the year. As the dissent states, the court found retaliation even though there was no evidence that the employer did so in retaliation for assertion of the workers' compensation claim. Id. at 671, 150 Cal.Rptr. 250, 586 P.2d 564. However, even in that case, the California court did not recognize a right to have a job held open for the employee while recuperating from a work-related injury. The court said; “we emphasize that our present holding in no way mandates that an employer retain all employees who sustain injuries on the job.” Id. at 667, 150 Cal.Rptr. 250, 586 P.2d 564.

Thus, the majority view is that an employer need not hold an employee's job open for as long as it takes the employee to recover from a work related injury. Accordingly, there is no clear mandate of public policy supporting plaintiff's Pierce claims.

Requiring a job to be held open until the employee recovers is not always practicable. Unfortunately, it may take many months, or even a year or more for a worker to recover from the injury sufficient to be able to return to work... In the meantime the job still has to get done, and the workplace still must function.

The majority rule makes sense. While, the laws prohibiting discrimination against the handicapped require that some reasonable accommodation must be made to an injured worker, at a certain point holding a job open for an extensive or indeterminate period of time becomes unreasonable. Having a worker out on extended leave in many circumstances puts significant pressure on other workers in the work place and management, which either must absorb the work within the workforce present or obtain and train temporary help. Where there is uncertainty about whether an injured employee will ever return to work, the temporary worker either lives with the insecurity that he or she will lose the job once the employee returns to work, or will seek other more secure employment, leaving management once again in the position of having to obtain and train further temporary help. In addition, it is not unusual at any particular time for more than one worker to be out on leave for a work-related injury. Over time, others may receive work-related injuries requiring their absences from the workplace for lengthy or indeterminate periods of time. When this situation occurs not once, but multiple times in the work place, it becomes more untenable and difficult for the remaining workers and management to accommodate a rule requiring that a job be held open indefinitely for a worker to recover from a work-related injury.

Current law does provide substantial protection and benefits to injured workers. The workers' compensation statute provides employees with compensation for any work-related injuries. It provides for payment of their medical bills and provides financial compensation for the injuries sustained in a work-related accident regardless of fault. Employers may not retaliate against workers seeking these benefits. The federal Family and Medical Leave Act, 29 U.S.C.A. § 2601, et seq., gives qualified workers a leave of up to 12 weeks for an illness, including a work related injury. The laws prohibiting discrimination against the handicapped provide all employees, whether suffering from a work-related injury or a non-work related injury, rights to reasonable accommodations for their injuries, which may include a limited leave. In addition to these benefits, an employee may have certain contractual benefits and rights to a leave of absence from work under a collective bargaining agreement or an employment contract. In addition, under a Woolley theory, company policy may provide an employee with a leave of absence from work.

For all of these reasons, public policy does not require that an employee's job be held open for the employee for as long as it takes for the employee to recover from a work related injury. Plaintiff's motion to amend the complaint to assert this novel cause of action is denied.

1. Compare the facts and analyses in the Nicosia and Ford cases, decided under the ADA, and the Malone case, brought under state law theories.  In all three cases, the individuals suffered from on-going serious health conditions and sought continuing relationships with their employers.   What should be the public policy regarding people who are having trouble showing up at work?  Should it matter whether their absence is related to a work-related injury or to a chronic illness?  Why did these individuals feel strongly enough about their situations to bring these cases and to appeal them to the appellate courts?

2. As the Malone court notes, there is a public policy-based common law or a statutory claim in almost every state if someone is discharged in retaliation for filing a workers’ compensation claim. On the other hand, states generally do not protect injured workers who are discharged under the umbrella of a neutral absence control policy.  As a result, occupationally-injured workers receive protection from discharge relating to absence primarily from the FMLA. 

3. A different problem emerges when employers offer injured workers an opportunity to return to work before the worker feels able. This generally happens in relationship to workers’ compensation claims, because the employer is motivated to reduce its workers’ compensation costs.  In many state workers’ compensation systems, an employee who refuses a proffered job may have his or her benefits discontinued.  This results in disputes over whether the job was one that offered appropriate accommodation.  This litigation can occur under the disability discrimination laws, but sometimes appears in the workers’ compensation arena as workers seek to have their benefits continued.

4. The majority of state workers’ compensation laws do not address rights to job retention or accommodation. Although termination for filing a workers’ compensation claim is generally viewed as retaliatory within a state’s retaliatory discharge laws, termination for absence due to occupational injury has not generally been held to be retaliatory.  A few state workers’ compensation laws include specific provisions regarding return to work after an occupational injury. 

West Virginia is one example, where an amendment to the workers’ compensation statute specifically addresses job retention.  As you read it, think about the underlying politics that led to the various specific conditions and provisions:

West Virginia Code §23-5A-3

Termination of injured employee prohibited; re- employment of injured employees.

(a) It shall be a discriminatory practice … to terminate an injured employee while the injured employee is off work due to a compensable injury … and is receiving or is eligible to receive temporary total disability benefits, unless the injured employee has committed a separate dischargeable offense. A separate dischargeable offense shall mean misconduct by the injured employee wholly unrelated to the injury or the absence from work resulting from the injury. A separate dischargeable offense shall not include absence resulting from the injury or from the inclusion or aggregation of absence due to the injury with any other absence from work.

(b) It shall be a discriminatory practice within the meaning of section one of this article for an employer to fail to reinstate an employee who has sustained a compensable injury to the employee's former position of employment upon demand for such reinstatement provided that the position is available and the employee is not disabled from performing the duties of such position. If the former position is not available, the employee shall be reinstated to another comparable position which is available and which the employee is capable of performing. A comparable position for the purposes of this section shall mean a position which is comparable as to wages, working conditions and, to the extent reasonably practicable, duties to the position held at the time of injury. A written statement from a duly licensed physician that the physician approves the injured employee's return to his or her regular employment shall be prima facie evidence that the worker is able to perform such duties. In the event that neither the former position nor a comparable position is available, the employee shall have a right to preferential recall to any job which the injured employee is capable of performing which becomes open after the injured employee notifies the employer that he or she desired reinstatement. Said right of preferential recall shall be in effect for one year from the day the injured employee notifies the employer that he or she desires reinstatement: Provided, That the employee provides to the employer a current mailing address during this one year period.

(c) Any civil action brought under this section shall be subject to the seniority provisions of a valid and applicable collective bargaining agreement, or arbitrator's decision thereunder, or to any court or administrative order applying specifically to the injured employee's employer, and shall further be subject to any applicable federal statute or regulation.

In International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, v. Johnson Controls, Inc., 499 U.S. 187 (1991), the U.S. Supreme Court grappled with a program in which the employer was excluding fertile female employees from jobs because of its concern for the health of the fetus the women might conceive.  This Fetal Protection Policy was specifically focused on exposures to lead – a substance known to cause birth defects.  Before Title VII was passed in 1964, Johnson Controls did not employ any woman in the battery manufacturing jobs where lead exposures were high. 

In June 1977, it adopted a policy of simply warning women about the risks.  According to the decision:

Between 1979 and 1983, eight employees became pregnant while maintaining blood lead levels in excess of 30 micrograms per deciliter.  This appeared to be the critical level noted by the Occupational Safety and Health Administration (OSHA) for a worker who was planning to have a family.   See 29 CFR §  1910.1025 (1990).   The company responded by announcing a broad exclusion of women from jobs that exposed them to lead:

"... [I]t is [Johnson Controls'] policy that women who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which could expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights."   App. 85-86.

The policy defined "women ... capable of bearing children" as "[a]ll women except those whose inability to bear children is medically documented." Id., at 81.   It further stated that an unacceptable work station was one where, "over the past year," an employee had recorded a blood lead level of more than 30 micrograms per deciliter or the work site had yielded an air sample containing a lead level in excess of 30 micrograms per cubic meter.

The policy was challenged in a class action under Title VII as discrimination against women.  The named plaintiffs were Mary Craig, who had chosen to be sterilized in order to avoid losing her job; Elsie Nason, a 50-year-old divorcee, who had suffered a loss in compensation when she was transferred out of a job where she was exposed to lead; and Donald Penney, who had been denied a request for a leave of absence for the purpose of lowering his lead level because he intended to become a father.    The decision continued:

The bias in Johnson Controls' policy is obvious.   Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job.   Section 703(a) of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. §  2000e-2(a), prohibits sex-based classifications in terms and conditions of employment, in hiring and discharging decisions, and in other employment decisions that adversely affect an employee's status. Respondent's fetal-protection policy explicitly discriminates against women on the basis of their sex.   The policy excludes women with childbearing capacity from lead-exposed jobs and so creates a facial classification based on gender.  …   [T]he Court of Appeals assumed …  that because the asserted reason for the sex-based exclusion (protecting women's unconceived offspring) was ostensibly benign, the policy was not sex-based discrimination.   That assumption, however, was incorrect.

…Johnson Controls' policy classifies on the basis of gender and childbearing capacity, rather than fertility alone.   Respondent does not seek to protect the unconceived children of all its employees.   Despite evidence in the record about the debilitating effect of lead exposure on the male reproductive system, Johnson Controls is concerned only with the harms that may befall the unborn offspring of its female employees. … Johnson Controls' policy is facially discriminatory because it requires only a female employee to produce proof that she is not capable of reproducing.

We concluded above that Johnson Controls' policy is not neutral because it does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females.   Moreover, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination. … The beneficence of an employer's purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under §  703(a) and thus may be defended only as a BFOQ.

… We hold that Johnson Controls' fetal-protection policy is sex discrimination forbidden under Title  VII unless respondent can establish that sex is a "bona fide occupational qualification."

… Johnson Controls argues that its fetal-protection policy falls within the so-called safety exception to the BFOQ.   Our cases have stressed that discrimination on the basis of sex because of safety concerns is allowed only in narrow circumstances….  No one can disregard the possibility of injury to future children; the BFOQ, however, is not so broad that it transforms this deep social concern into an essential aspect of battery making.

Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job.   …

We conclude that the language of both the BFOQ provision and the PDA [Pregnancy Discrimination Act] which amended it, as well as the legislative history and the case law, prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job.  

* * * * * * *

1. Occupational exposures that may cause adverse pregnancy outcomes include anesthetic gases, arsenic, cadmium, carbon disulfide, carbon monoxide, chloroprene, ethylene oxide, inorganic mercury, mixed solvents, radiation, vinyl chloride, as well as physical stress. A toxic agent may affect an embryo even if the one of the parents is exposed before conception, by affecting the germ cells of the ova or sperm.  Toxins can also persist in the maternal body, and the developing child can then be exposed through maternal blood circulation.  There are two basic approaches to prevent exposure of a pregnant woman to an identified teratogen: transfer to a different job (or exclusion from the job), or control of the exposure level in the job.  Because of the time lag between conception and the recognition of pregnancy – a time when the embryo or fetus is especially vulnerable to the effects of exposure – significant exposure may occur if medical removal after pregnancy is known is the only preventive strategy.

2. The lead standard can be found at 29 C.F.R. 1910.1025. The standard explicitly acknowledges the reproductive risks of lead (to both men and women) and sets an exposure action level of 30 micrograms and a permissible exposure limit of 50 micrograms per cubic meter of air averaged over an 8-hour period.  When the action level is reached,  the employer must continue to do exposure monitoring on a regular basis and establish a medical surveillance program for employees exposed at this level for more than 30 days per year.  As part of this medical surveillance program, the employer is required to provide employees with “information concerning the adverse health effects associated with excessive exposure to lead (with particular attention to the adverse reproductive effects on both males and females).”  The standard also requires “temporary medical removal”with “Medical Removal Protection benefits” when an employee's blood lead level is at or above 50 <<mu>>g/100 g of whole blood.  During a temporary transfer under the regulation, the employer is required to maintain earnings, seniority and other employment rights and benefits as though the employee had not been transferred.

3. Lead, and numerous other substances, pose reproductive risk in two ways: to the reproductive germ cells of men and women, and to the embryo or fetus.  As noted in note 1 above, fetal risk is at its peak during the first trimester, before women know they are pregnant.  This is, in part, the issue that the court was grappling with in Johnson Controls.  Given this, and given what you know about the OSHA standard setting process, what do you think should be the goal for OSHA standards in protecting reproductive health?  That is, how would you consider the issues of significant risk and material impairment of health within the context of standard setting?

Justice Souter delivered the opinion of the Court.

A regulation of the Equal Employment Opportunity Commission authorizes refusal to hire an individual because his performance on the job would endanger his own health, owing to a disability.  The question in this case is whether the Americans with Disabilities Act of 1990, 104 Stat. 328, 42 U.S.C. §  12101 et seq. (1994 ed. and Supp. V), permits the regulation.^[1] We hold that it does.

I

Beginning in 1972, respondent Mario Echazabal worked for independent contractors at an oil refinery owned by petitioner Chevron U.S.A. Inc. Twice he applied for a job directly with Chevron, which offered to hire him if he could pass the company's physical examination.  Each time, the exam showed liver abnormality or damage, the cause eventually being identified as Hepatitis C, which Chevron's doctors said would be aggravated by continued exposure to toxins at Chevron's refinery.  In each instance, the company withdrew the offer, and the second time it asked the contractor employing Echazabal either to reassign him to a job without exposure to harmful chemicals or to remove him from the refinery altogether.  The contractor laid him off in early 1996.

Echazabal filed suit, ultimately removed to federal court, claiming, among other things, that Chevron violated the Americans with Disabilities Act (ADA or Act) in refusing to hire him, or even to let him continue working in the plant, because of a disability, his liver condition. Chevron defended under a regulation of the Equal Employment Opportunity Commission (EEOC) permitting the defense that a worker's disability on the job would pose a "direct threat" to his health, see 29 CFR §  1630.15(b)(2) (2001).  Although two medical witnesses disputed Chevron's judgment that Echazabal's liver function was impaired and subject to further damage under the job conditions in the refinery, the District Court granted summary judgment for Chevron.  It held that Echazabal raised no genuine issue of material fact as to whether the company acted reasonably in relying on its own doctors' medical advice, regardless of its accuracy.

On appeal, the Ninth Circuit asked for briefs on a threshold question not raised before, whether the EEOC's regulation recognizing a threat-to-self defense, exceeded the scope of permissible rulemaking under the ADA. The Circuit held that it did and reversed the summary judgment.  The court rested its position on the text of the ADA itself in explicitly recognizing an employer's right to adopt an employment qualification barring anyone whose disability would place others in the workplace at risk, while saying nothing about threats to the disabled employee himself.  The majority opinion reasoned that "by specifying only threats to 'other individuals in the workplace,' the statute makes it clear that threats to other persons--including the disabled individual himself--are not included within the scope of the [direct threat] defense," and it indicated that any such regulation would unreasonably conflict with congressional policy against paternalism in the workplace. The court went on to reject Chevron's further argument that Echazabal was not " 'otherwise qualified' " to perform the job, holding that the ability to perform a job without risk to one's health or safety is not an " 'essential function' " of the job. 

The decision conflicted with one from the Eleventh Circuit, Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (1996), and raised tension with the Seventh Circuit case of Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 603 (1999).  We granted certiorari and now reverse.

II

Section 102 of the ADA, 42 U.S.C. §  12101 et seq., prohibits "discriminat[ion] against a qualified individual with a disability because of the disability ... in regard to" a number of actions by an employer, including "hiring."  42 U.S.C. §  12112(a).  The statutory definition of "discriminat[ion]" covers a number of things an employer might do to block a disabled person from advancing in the workplace, such as "using qualification standards ... that screen out or tend to screen out an individual with a disability." §  12112(b)(6).  By that same definition, as well as by separate provision, §  12113(a), the Act creates an affirmative defense for action under a qualification standard "shown to be job-related for the position in question and ... consistent with business necessity."  Such a standard may include "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace," §  12113(b), if the individual cannot perform the job safely with reasonable accommodation, §  12113(a).  By regulation, the EEOC carries the defense one step further, in allowing an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks on the job to his own health or safety as well:  "The term 'qualification standard' may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace."  29 CFR §  1630.15(b)(2) (2001).

Chevron relies on the regulation here, since it says a job in the refinery would pose a "direct threat" to Echazabal's health.  In seeking deference to the agency, it argues that nothing in the statute unambiguously precludes such a defense, while the regulation was adopted under authority explicitly delegated by Congress, 42 U.S.C. §  12116, and after notice-and-comment rulemaking.  Echazabal, on the contrary, argues that as a matter of law the statute precludes the regulation, which he claims would be an unreasonable interpretation even if the agency had leeway to go beyond the literal text.

A

As for the textual bar to any agency action as a matter of law, Echazabal says that Chevron loses on the threshold question whether the statute leaves a gap for the EEOC to fill.  Echazabal recognizes the generality of the language providing for a defense when a plaintiff is screened out by "qualification standards" that are "job-related and consistent with business necessity" (and reasonable accommodation would not cure the difficulty posed by employment).  42 U.S.C. §  12113(a). Without more, those provisions would allow an employer to turn away someone whose work would pose a serious risk to himself.  That possibility is said to be eliminated, however, by the further specification that " 'qualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." §  12113(b);  see also §  12111(3) (defining "direct threat" in terms of risk to others).  Echazabal contrasts this provision with an EEOC regulation under the Rehabilitation Act of 1973, 29 U.S.C. §  701 et seq., antedating the ADA, which recognized an employer's right to consider threats both to other workers and to the threatening employee himself.  Because the ADA defense provision recognizes threats only if they extend to another, Echazabal reads the statute to imply as a matter of law that threats to the worker himself cannot count.

… Congress included the harm-to-others provision as an example of legitimate qualifications that are "job-related and consistent with business necessity."  These are spacious defensive categories, which seem to give an agency (or in the absence of agency action, a court) a good deal of discretion in setting the limits of permissible qualification standards.  That discretion is confirmed, if not magnified, by the provision that "qualification standards" falling within the limits of job relation and business necessity "may include" a veto on those who would directly threaten others in the workplace.  Far from supporting Echazabal's position, the expansive phrasing of "may include" points directly away from the sort of exclusive specification he claims.^[2] 

… [The court discusses the fact that the statutory language under the Rehabilitation Act and that of the ADA are the same, and that the EEOC chose to interpret both in the same manner, extending the ‘direct threat’ defense to situations involving threat to self as well as others.]

… Instead of making the ADA different from the Rehabilitation Act on the point at issue, Congress used identical language, knowing full well what the EEOC had made of that language under the earlier statute.  Did Congress mean to imply that the agency had been wrong in reading the earlier language to allow it to recognize threats to self, or did Congress just assume that the agency was free to do under the ADA what it had already done under the earlier Act's identical language?  There is no way to tell. Omitting the EEOC's reference to self-harm while using the very language that the EEOC had read as consistent with recognizing self-harm is equivocal at best.  No negative inference is possible.* * *

B

Since Congress has not spoken exhaustively on threats to a worker's own health, the agency regulation can claim adherence under the rule in Chevron, 467 U.S., at 843, 104 S.Ct. 2778, so long as it makes sense of the statutory defense for qualification standards that are "job-related and consistent with business necessity."  42 U.S.C. §  12113(a).  Chevron's reasons for calling the regulation reasonable are unsurprising:  moral concerns aside, it wishes to avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act of 1970, 84 Stat. 1590, as amended, 29 U.S.C. §  651 et seq.  Although Echazabal claims that none of these reasons is legitimate, focusing on the concern with OSHA will be enough to show that the regulation is entitled to survive.

Echazabal points out that there is no known instance of OSHA enforcement, or even threatened enforcement, against an employer who relied on the ADA to hire a worker willing to accept a risk to himself from his disability on the job. In Echazabal's mind, this shows that invoking OSHA policy and possible OSHA liability is just a red herring to excuse covert discrimination.  But there is another side to this.  The text of OSHA itself says its point is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions," §  651(b), and Congress specifically obligated an employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees," §  654(a)(1). Although there may be an open question whether an employer would actually be liable under OSHA for hiring an individual who knowingly consented to the particular dangers the job would pose to him, there is no denying that the employer would be asking for trouble:  his decision to hire would put Congress's policy in the ADA, a disabled individual's right to operate on equal terms within the workplace, at loggerheads with the competing policy of OSHA, to ensure the safety of "each" and "every" worker.  Courts would, of course, resolve the tension if there were no agency action, but the EEOC's resolution exemplifies the substantive choices that agencies are expected to make when Congress leaves the intersection of competing objectives both imprecisely marked but subject to the administrative leeway found in 42 U.S.C. §  12113(a).

Nor can the EEOC's resolution be fairly called unreasonable as allowing the kind of workplace paternalism the ADA was meant to outlaw.  It is true that Congress had paternalism in its sights when it passed the ADA, see §  12101(a)(5) (recognizing "overprotective rules and policies" as a form of discrimination).  But the EEOC has taken this to mean that Congress was not aiming at an employer's refusal to place disabled workers at a specifically demonstrated risk, but was trying to get at refusals to give an even break to classes of disabled people, while claiming to act for their own good in reliance on untested and pretextual stereotypes.^[3]  Its regulation disallows just this sort of sham protection, through demands for a particularized enquiry into the harms the employee would probably face.  The direct threat defense must be "based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence," and upon an expressly "individualized assessment of the individual's present ability to safely perform the essential functions of the job," reached after considering, among other things, the imminence of the risk and the severity of the harm portended.  29 CFR §  1630.2(r) (2001).  The EEOC was certainly acting within the reasonable zone when it saw a difference between rejecting workplace paternalism and ignoring specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job.^[4]

Finally, our conclusions that some regulation is permissible and this one is reasonable are not open to Echazabal's objection that they reduce the direct threat provision to "surplusage," see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995).  The mere fact that a threat-to-self defense reasonably falls within the general "job related" and "business necessity" standard does not mean that Congress accomplished nothing with its explicit provision for a defense based on threats to others.  The provision made a conclusion clear that might otherwise have been fought over in litigation or administrative rulemaking.  It did not lack a job to do merely because the EEOC might have adopted the same rule later in applying the general defense provisions, nor was its job any less responsible simply because the agency was left with the option to go a step further.  A provision can be useful even without congressional attention being indispensable.

Accordingly, we reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.

FOOTNOTES

[1] We do not consider the further issue passed upon by the Ninth Circuit, which held that the respondent is a " 'qualified individual' " who "can perform the essential functions of the employment position," 42 U.S.C. §  12111(8) (1994 ed.).  226 F.3d 1063, 1072 (C.A.9 2000).  That issue will only resurface if the Circuit concludes that the decision of respondent's employer to exclude him was not based on the sort of individualized medical enquiry required by the regulation, an issue on which the District Court granted summary judgment for petitioner and which we leave to the Ninth Circuit for initial appellate consideration if warranted.

[2] * * * Without deciding whether all safety-related qualification standards must satisfy the ADA's direct-threat standard, we assume that some such regulations are implicitly precluded by the Act's specification of a direct-threat defense, such as those allowing "indirect" threats of "insignificant" harm.  This is so because the definitional and defense provisions describing the defense in terms of "direct" threats of "significant" harm, 42 U.S.C. § §  12113(b), 12111(3), are obviously intended to forbid qualifications that screen out by reference to general categories pretextually applied.  Recognizing the "indirect" and "insignificant" would simply reopen the door to pretext by way of defense.

[3] Echazabal's contention that the Act's legislative history is to the contrary is unpersuasive.  Although some of the comments within the legislative history decry paternalism in general terms, see, e.g., H.R.Rep. No. 101-485, pt. 2, p. 72 (1990), U.S.Code Cong. & Admin.News 1990, pp. 303, 354 ("It is critical that paternalistic concerns for the disabled person's own safety not be used to disqualify an otherwise qualified applicant");  ADA Conf. Rep., 136 Cong. Rec. 17377 (1990) (statement of Sen. Kennedy) ("[A]n employer could not use as an excuse for not hiring a person with HIV disease the claim that the employer was simply 'protecting the individual' from opportunistic diseases to which the individual might be exposed"), those comments that elaborate actually express the more pointed concern that such justifications are usually pretextual, rooted in generalities and misperceptions about disabilities. See, e.g., H.R.Rep. No. 101-485, at 74, U.S.Code Cong. & Admin.News 1990, pp. 303, 356 ("Generalized fear about risks from the employment environment, such as exacerbation of the disability caused by stress, cannot be used by an employer to disqualify a person with a disability"); S.Rep. No. 101-116, p. 28 (1989) ("It would also be a violation to deny employment to an applicant based on generalized fears about the safety of the applicant .... By definition, such fears are based on averages and group-based predictions.  This legislation requires individualized assessments"). Similarly, Echazabal points to several of our decisions expressing concern under Title VII, which like the ADA allows employers to defend otherwise discriminatory practices that are "consistent with business necessity," 42 U.S.C. §  2000e-2(k), with employers adopting rules that exclude women from jobs that are seen as too risky.  See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 335, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977);  Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 202, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991).  Those cases, however, are beside the point, as they, like Title VII generally, were concerned with paternalistic judgments based on the broad category of gender, while the EEOC has required that judgments based on the direct threat provision be made on the basis of individualized risk assessments.

[4] Respect for this distinction does not entail the requirement, as Echazabal claims, that qualification standards be "neutral," stating what the job requires, as distinct from a worker's disqualifying characteristics.  Brief for Respondent 26.  It is just as much business necessity for skyscraper contractors to have steelworkers without vertigo as to have well-balanced ones.  See 226 F.3d, at 1074 (Trott, J., dissenting).  Reasonableness does not turn on formalism.  We have no occasion, however, to try to describe how acutely an employee must exhibit a disqualifying condition before an employer may exclude him from the class of the generally qualified.  See Brief for Respondent 31.  This is a job for the trial courts in the first instance.

1. In a March 2015 decision, the Tenth Circuit reiterated the test for the “direct threat” defense. EEOC v. Beverage Distributors Company LLC, 780 F.3d 1018 (10^th 2015). In this case, a worker with impaired vision met the requirements to be considered disabled under the ADA and sought accommodation at work. The issue of liability ultimately focused on whether the employer had met its burden to prove the affirmative defense of “direct threat.” Here is how the court approached the question:

The direct-threat defense stems from the Americans with Disabilities Act. Under the Act, an employer cannot discriminate on the basis of a disability. See 42 U.S.C. § 12112(a). But, an employer may decide not to hire disabled individuals if they pose a “direct threat to the health or safety” of themselves or others. 29 C.F.R. § 1630.15(b)(2). A “direct threat” involves “a significant risk of substantial harm to the health or safety of the [person] or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r).

The existence of a direct threat is an affirmative defense to a statutory claim of discrimination. For this defense, Beverage Distributors had to show that it reasonably determined that Mr. Sungaila [the complainant] had posed a direct threat. See Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir.2007) (stating that “the fact-finder does not independently assess whether it believes that the employee posed a direct threat,” but “determine[s] [instead] whether the employer’s decision was objectively reasonable”).

In sum, Beverage Distributors could avoid liability by showing that it reasonably determined:

1. 1. Mr. Sungaila posed a significant risk of substantial harm to the health or safety of himself or others, and
   2. that risk could not be eliminated or reduced by reasonable accommodation.

The lower court had instructed the jury in part as follows:

To establish this defense, Beverage Distributors must prove both of the following by a preponderance of the evidence:

1. 1. 1. Mr. Sungaila’s employment in a Night Warehouse position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and
      2. Such a risk could not have been eliminated or reduced by reasonable accommodation.’

The second part of the instruction elaborated on the standard:

The determination that a direct threat exists must have been based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ability must have been based on either a reasonable medical judgment that relied on medical knowledge [or best objective evidence] available at the time of assessment.... An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.....

In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.

The Tenth Circuit concluded that the instruction did not accurately convey the direct-threat standard because it “required Beverage Distributors to prove more than what was legally necessary. According to the first part, Beverage Distributors had to prove that Mr. Sungaila posed a direct threat. That was not accurate under our case law. Beverage Distributors should have avoided liability if it had reasonably believed the job would entail a direct threat; proof of an actual threat should have been unnecessary.  

2. With regard to the “direct threat” safety defense in ADA cases: A direct threat has been found where a city bus driver had insulin-dependent diabetes, Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.1995), cert. den., 516 U.S. 1172 (1996); where an employee with epilepsy worked near fast-moving press rollers and conveyor belts, Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir.1996); where a U.S. marshal with a paranoid personality disorder would have created a risk if he carried a firearm, Lassiter v. Reno, 885 F.Supp. 869 (E.D.Va.1995), aff’d  Lassiter v. Reno, 86 F.3d 1151 (4th Cir.1996); where an armed security guard had a serious psychological problem, Layser v. Morrison, 935 F.Supp. 562 (E.D.Pa.1995); and where a firefighter with asthma was susceptible to breathing difficulties at work. Huber v. Howard County, 56 F.3d 61 (4th Cir.1995) (table case), certiorari denied, 516 U.S. 916 (1995).  Do you see any differences among these different scenarios?

3. In thinking about the question of individual worker exclusion based on risk, does it matter whether the employer is in compliance with a specific OSHA standard? What did you think of the court’s treatment of the OSHA issues in Echazabel?

4. To what extent should employers have an obligation to provide alternative employment to employees whom they view at risk, either temporarily or permanently? What if the employee is not a “qualified disabled person” within the meaning of the ADA or state fair employment practice laws?  Within the current law, is there any argument to be made that the general duty clause can be triggered for issues of individualized risk?

5. What if the risk to the worker is the result of prior exposures in the same workplace? Should that matter? That is, should an employer owe a ‘higher’ duty to an employee who was made ill by exposures at the same workplace? Alternatively, should workers’ compensation programs be expected to extend additional benefits to an injured or ill worker caught in this situation?

6. Notably, a few OSHA standards specifically address the problem of workers who cannot work in certain exposures. For example, the lead standard allows for medical removal protection of workers who are lead exposed and show a blood lead level that exceeds what is viewed as acceptable.  See 29 C.F.R. § 1910.1025.