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Don’t nickel and dime ADA accommodations: Everything can’t be essential to the job

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in Discrimination and Harassment,Employment Law,Human Resources

Under the ADA, disabled employees are entitled to reasonable accommodations that allow them to perform the essential functions of their jobs. They’re also excused from so-called nonessential functions.

Employers sometimes think they can get around the ADA requirements by calling every task in a job description “essential.” They hope they’ll be able to exclude anyone who can’t do absolutely every aspect of the job.

But that strategy can backfire badly because not every task is essential. Consider, for example, the following case in which the employee lost all function in one arm and therefore couldn’t lift anything that required her to use both arms.

Recent case: Mislehivy Calvo worked successfully as an assistant manager for a Walgreens drug store for a year until she lost consciousness while driving and had a serious accident. She fractured both arms, but returned to work after several surgeries.

Her left arm and hand were now completely nonfunctional, and she had to use a brace on her arm. She was unable to shower or dress herself, factors that the court would later decide made her disabled under the ADA.

Calvo was able to work for several months and then had more surgery. Finally, doctors determined that her arm function would not improve, and released her to work with a restriction—no lifting anything heavier than five pounds.

This time, Walgreens refused to reinstate her. The reason it cited: Calvo’s doctor hadn’t certified her as ready to fully resume work. He apparently hadn’t checked a box saying she could do her job.

She sued, alleging ADA violations.

Walgreens argued that, because her one arm was essentially useless, she could never perform the essential functions of the assistant manager job. It pointed to its extensive job description. Among the 23 essential functions listed on that job description was one that involved lifting items heavier than five pounds. None of the other functions included lifting requirements.

Calvo argued that since she could carry out 22 of the 23 essential functions, Walgreens was simply looking for a reason to fire her. She pointed out she had successfully performed her job when she came back to work after the first operations.

The 11th Circuit Court of Appeals ruled she was entitled to a trial. While courts generally defer to employers on what are or are not essential job functions, Walgreens’ long list made the court suspicious. (Calvo v. Walgreens, No. 08-16229, 11th Cir., 2009)

Note: The court also pointed out that since Calvo could clearly perform almost all of what Walgreens insisted were essential functions, having other employees help Calvo perform the final function would be a reasonable accommodation. It noted that’s what had happened during her earlier return to work.

Final note: Imagine how this case will play in front of a jury. Calvo will probably garner much sympathy, with her useless arm at her side.

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