Is Shared Lifting a “Reasonable” Accommodation?
Employees who suffer from a bad back and have lifting restrictions always present a challenge to employers who attempt to accommodate those restrictions. It’s discrimination under the ADA if the employer fails to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability. The challenge is to know what’s reasonable. The disabled employee has the initial burden of proposing an accommodation and showing that it is objectively reasonable. If the employee can show that, then the employer would either have to propose an effective accommodation or show that the accommodation would impose an undue hardship. But say an employee with a bad back and a 10-pound lifting restriction proposed “shared lifting” as an accommodation. Would that be reasonable?
It’s the Employee’s Burden to Show the Accommodation Is “Reasonable”
In this case, an employee who had a 10-pound lifting restriction couldn’t meet his burden to show that sharing his lifting responsibilities with others was reasonable. This employee worked as a laborer at a waste water treatment plant where his job regularly involved lifting, transporting and moving buckets, barrels, hoses and pipe all weighing well over 30 pounds and some even as much as 100 pounds. He got hurt on the job and for a time was assigned light duty but eventually was given a permanent restriction of lifting no more than 30 pounds occasionally or 10 pounds frequently. The employer placed the employee on FMLA leave and worked with him to try to find a job that he could do. The employee agreed that lifting heavy objects was an essential part of his job but insisted that if others could help him lift the heavy things, then he could “do the job.” The employer said that to require others to help out with shared lifting would not be reasonable because that would effectively shift essential functions of the employee’s job to another employee. The employer continued to try to find an accommodation, and there were no vacant positions that the employee could do. After all of that, the employee was discharged. He filed suit under the ADA, claiming that, among other things, his employer failed to reasonably accommodate his back condition and lifting restrictions.
This Burden in This case Was Too Heavy
The court sided with the employer on this one and granted summary judgment. It’s simply not reasonable to require an employer to shift any essential function of an employee’s job to another employee as an accommodation for a disability. Sure, the court said “job restructuring” can be a reasonable accommodation, but that would be the case only if a non-essential or marginal function is eliminated from the job. In this case, all parties agreed that lifting heavy items was an essential function. Given those facts, the court ultimately held that the employee was not entitled to demand that others help him do the heavy lifting. That would be unreasonable.
The Lesson for Employers
In this case, the employer did a lot of things right. It placed the employee on FMLA when required. It offered light duty for a while as it worked with the employee and his health care provider to determine the extent of his permanent lifting restrictions. It met with the employee to search out possible vacant positions that he could do. Ultimately, finding that nothing was available that could accommodate him and his 10-pound lifting restriction, the employer made the tough decision to discharge rather than require another employee to do an essential part of the job for him. All of this points to the value of engaging in the “Good Faith Interactive Process” that will either: 1) lead to finding a reasonable accommodation that allows the employee to remain productive, or 2) provide the employer with a sound defense in the event the employee challenges the employer’s action.
Reference: Turner v. City of Paris, Kentucky, (E.D. Ky, 5:11-cv-00351-KSF-REW, December 26, 2012).
If you have any questions or would like additional information on the ADA “Good Faith Interactive Process,” contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
