If the ability to perform certain physical tasks is absolutely essential to one of the jobs in your workplace, tread carefully when it comes to medical evaluations. If you hire an expert to help decide whether a candidate or newly disabled employee can safely perform the job, make sure he or she focuses on the position and avoids commenting on more general limitations.
Here’s why: The ADA makes it illegal to “regard” persons as disabled. If an expert looks at what may be a minor physical impairment and makes a laundry list of non-job-related tasks the person being evaluated cannot do, a court likely will conclude that you regard the person as disabled.
But narrowing the focus to specific tasks in the current job that the individual cannot perform does not have the same effect. That’s because to be considered disabled, a person must be substantially impaired in performing major life functions, such as walking, talking, caring for oneself, hearing or working.
Recent case: Naomi Walton worked as a court security officer for the U.S. Marshals Service at a federal courthouse in California. During a routine physical exam required for all employees, a medical expert determined she was completely deaf in one ear. Because her job required being able to tell where sounds came from, Walton didn’t pass the physical.
The Marshals Service discharged her and she sued, alleging her employer regarded her as disabled. But the 9th Circuit Court of Appeals dismissed her case. Because the expert only said Walton couldn’t do a specific job—not that
she couldn’t take care of herself or hear well enough with one ear to get along in her everyday life—there was no illegal discrimination. (Walton v. U.S. Marshals Service, et al., No. 05-17308, 9th Cir., 2007)