Got Milk? How Employee’s Lifting Limitation Can Prove a Disability — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Got Milk? How Employee’s Lifting Limitation Can Prove a Disability

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Who’s considered “disabled” under the Americans with Disabilities Act (ADA)? Ever since the passage of the ADA Amendments Act (ADAAA) a few years ago, the better question has been “Who isn’t?” The new law eased the definition of disability, allowing many more employees to earn accommodations at work. In this new case, a court has ruled that an employee may be protected if she can’t pick up something as light as a gallon of milk …

Case in Point: Barbara Barlow worked for 14 years at Walgreens store in Florida. Despite her challenges with heavy lifting and bending because of musculoskeletal conditions, she was still described as a good employee. Her former manager rated her as exceeding expectations in 10 of 11 categories.

But when a different manager took over, everything changed. The new boss put Barlow on the evening shift and asked her to perform janitorial duties. When Barlow explained she was unable to mop and lift trash can lids, the manager asked for a doctor’s note explaining her limitations. The letter said Barlow only needed “slight assistance” in her work duties. The doctor even offered to speak on the phone with the new manager. The manager didn’t feel it was her “obligation” to call, so she trashed the doctor’s letter.

Next, the new manager asked Barlow to list all her disabilities on a piece of paper. One item on the list: Barlow said she could not lift a gallon of milk into a customer’s bag, but she could “slide” it in. The manager responded by tossing Barlow’s list in the trash and soon proclaimed that Barlow could no longer work for Walgreen because she was disabled. The manager took Barlow off the schedule and told her to apply for disability benefits.
Barlow sued under the Americans with Disabilities Act Amendments Act (ADAAA) of 2008 and state law claiming she was fired for being “perceived as” disabled.

Walgreens denied the claim, saying Barlow never informed them she was “disabled” (by using that specific word) and even so, she could not do the essential functions of the job to be protected under the ADAAA.

Decision: The appellate court ruled that Barlow was considered disabled under the ADAAA. “The new regulations do not even require that the limitation be ‘significant or severe,’ and the ADAAA was intended to promulgate a more liberal standard of the term ‘disabled,’ making it significantly easier for a plaintiff to show a disability,” said the court. “The fact that (Barlow’s) disorders cause her to have great difficulty lifting even relatively light objects such as a gallon of milk … testify to the seriousness of her musculoskeletal problems.” (Barlow v. Walgreen Co., M.D. Fla., 3/14/12)

3 Lessons Learned … Without Going to Court

1. The ADAAA is super-duper lenient. Before terminating an employee, remember “the gallon of milk test.” It doesn’t take much to be considered legally disabled under the new federal regulations. (Learn more about the ADAAA by reading What’s an ADA disability?)

2. Don’t trash others. Doctor’s letters, employee’s lists and anything acquired in the course of business should be kept according to your organization’s record retention policies. When in doubt, don’t throw it out. Seek legal guidance.

3. A change in guard may cause liability. As in this case, one supervisor perceived the plaintiff as having a “walk on water” stellar performance history. In contrast, the new supervisor saw it drastically differently. When HR notices such a substantial change in perceived performance, you had better pay very close attention. There just might be a lawsuit coming ashore.

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