Watch out! Some tests you use to see whether employees or applicants are suitable for a job could screen out individuals with disabilities. And if one of those disabled persons decides he lost a job (or didn’t get a job) because of illegal disability discrimination, you could wind up in court defending against an ADA claim.
Make sure any medical tests you require are truly related to the job and based on legitimate business necessity.
Recent case: Larry Rohr was working as a welding supervisor when he developed type 2 diabetes and had to start taking insulin in addition to following a strict diet. He also developed high blood pressure.
He asked for a number of accommodations to help him manage the disease at work, including exemptions from having to climb and work in heat. Until his diagnosis, Rohr usually worked in an office and only occasionally did his duties take him outside or require him to climb. He argued that it would be a reasonable accommodation to allow him to skip any temporary assignments requiring climbing in the heat.
Rohr’s employer refused to allow the accommodation. It also scheduled him for a test on the use of respiratory equipment, which he couldn’t take because of his diabetes-related high blood pressure. Therefore his certification lapsed. The employer then offered him the option of bidding on other jobs or taking disability retirement.
Rohr retired and then he sued, alleging disability discrimination. First, he argued that the respirator test automatically screened out those with diabetes and high blood pressure. He contended the test was neither job-related nor a business necessity; he said his position didn’t require regular use of a respirator. Second, he argued that travel and temporary assignments weren’t an essential function of his job or—if they were—could have been reasonably accommodated.
The court ruled for Rohr, saying that once a disabled employee shows that a test screens out those with disabilities, it’s up to the employer to show that the test is job-related and necessary. The employer hadn’t shown there was a legal requirement for the certification and had no evidence that Rohr regularly had to use a respirator.
As to Rohr’s other claims, the court said they could go forward. The employer will try to show that Rohr wasn’t qualified because the travel and temporary assignments are essential functions of the job. Rohr will argue those functions aren’t essential or could be farmed out as an accommodation. (Rohr v. Salt River Project Agricultural Improvement and Power District, No. 06-16527, 9th Cir., 2009)
Final note: There was no question in the court’s mind that Rohr really was disabled, either under the old version of the ADA or under the new rules in the ADA Amendments Act of 2008, which took effect in January. That law requires employers to consider employees disabled even if medicine or medical devices mitigate the effects of the underlying condition. Thus, if Rohr’s untreated diabetes would impair essential life functions, he is disabled, medicated or not.
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