Was Job Restructuring Reasonable? The Jury Will Decide
A hairdresser at a nursing home quit her job following surgery when her boss failed to consider assigning her duties of transporting wheelchair bound residents to the beauty salon to orderlies. She filed an ADA suit claiming a failure to reasonably accommodate her disability. The nursing home argued that transporting wheelchair bound residents to the salon was an essential function that it was not obligated to assign to another employee. The lower court agreed and dismissed her case. But, on appeal, the Seventh Circuit reversed and remanded the case to be heard by a jury. This outcome is troubling for employers faced with the dilemma of determining what functions are essential and whether those functions can be shifted to others as a “job restructuring.”
Pushing Residents in Wheelchairs Part of a Hairdresser’s Job
In this case, the hairdresser had worked for the nursing home for 20 years. Her job involved dressing residents’ hair in the beauty salon. In addition, she was responsible for going to the next resident’s room and transporting him or her to the beauty salon and back to his or her room at the conclusion of the hairdressing appointment. Each trip averaged about three minutes and involved residents who weighed from 100 to 400 pounds.
Can’t Push a Wheelchair Anymore
Unfortunately, the hairdresser underwent a hysterectomy and bladder surgery. Her doctor gave her written permission to return to work eight weeks after the operation with the notation that she could not “push over 20 pounds until released to do so.” That limit was raised by the doctor to 50 pounds five months later. But the doctor didn’t know that her job involved pushing wheelchairs; he thought her functions were exclusively related to hairdressing. When later she mentioned her wheelchair duties to him, he told her “you can’t be pushing and lifting” people in wheelchairs because “over a repetitive time” that would cause her mesh lining to be torn loose “and you’ll be back in for bladder repair again.”
She then informed the nursing home’s administrator that she couldn’t push the residents in the wheelchairs anymore. The administrator told her that they were not able to accommodate her because it would put a hardship on the facility to hire somebody to transport the residents from the beauty shop to the their rooms and back and forth. She raised the possibility of transferring to the laundry department, but he brushed her off on that suggestion. Hearing that, she quit.
Facts for the Jury
On appeal, the Seventh Circuit concluded that there were several questions of fact that a jury must decide. Those included:
- The percentage of time spent actually transporting the residents compared to other hairdressing duties;
- Whether the transport was, in fact, an “essential” function of her job as a hairdresser;
- The cost and the inconvenience to others who might be assigned the transporting duties; and
- The extent to which residents might be adversely affected by reassigning the transporting duties.
The question according to the court is whether her inability to push residents in a wheelchair could reasonably be accommodated by assistance from other staff. The court’s opinion appears to suggest that reassigning the transport duties to others would be a reasonable accommodation in this case.
The Concurring Opinion Has a Point
However, the concurring opinion by one of the judges indicates that the court’s analysis was off base. Rather than focusing primarily on the amount of time involved in transport as the court did, the concurring judge would defer to the employer’s argument that the benefits of the personal social interaction while transporting the resident to and from the salon was an important part of the job regardless of the amount of time involved. Further, it was pointed out that the hairdresser going to the next resident’s room after completing an appointment would avoid back up in the salon that might occur if the orderlies were simply transporting residents on a set schedule. Finally, the judge suggested that a motorized transport device might allow the hairdresser to transport the resident without the prohibited exertion. The bottom line, according to the concurring judge, is that there is more to determining an essential function than just the amount of time involved in the function. These alternatives weren’t explored in the summary judgment proceedings, so a jury trial is appropriate in this case.
Lessons for Employers
The nursing home could have done a better job in dealing with the hairdresser’s work restrictions. These lessons apply to almost all situations:
- Always engage in a good faith interactive process in the hope of finding a reasonable accommodation;
- Determine what functions of the job are essential and be able to articulate why they are;
- Consider assistive devices that allow the essential functions to be performed without creating an undue hardship on the facility;
- Consider reassignment to a vacant position; and
- Consider job restructuring to eliminate a marginal function.
Reference: Kauffman v. Peterson Health Care, d/b/a Mason Point (Seventh Circuit, October 16, 2014).
If you have questions please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
