9-6-11; The United States Court of Appeals Seventh Circuit held pregnancy-related complications did not render an employee disabled within the meaning of the ADA

Due to a lack of any substantial impairment limiting a major life activity as well as refusal to accommodate pregnancy-related complications resulting in termination, the Federal Appellate Court found it was not discrimination under Title VII/PDA to terminate due to lack of evidence employer treated similarly situated non-pregnant co-workers more favorably.

In Serednyj v. Beverly Healthcare, LLC (2011 WL 3800123 C.A.7 issued Aug. 26, 2011), the employee worked as an Activity Director for a nursing home. The execution of duties entailed some physically strenuous functions including rearranging dining room tables for specific activities as well as transporting residents to activities in heavy wheelchairs and co-workers often assisted Employee in performing job duties. Employee began to have pregnancy complications and a doctor implemented work restrictions limiting activities to no heavy lifting or strenuous activities directly in conflict with job duties.

The employer considered reasonable accommodation but refused same based on policy allowing restriction only when medically necessary for qualified individuals with disabilities to perform essential functions and permitting no other restricted or limited duty for non-work related injuries or conditions. The employer felt the employee did not qualify for FMLA leave based on insufficient length of employment. Employer paid all available sick and vacation leave pursuant to policies and informed employee to return to work or risk termination. The employee remained absent from work and the employer terminated employment.

The employee then requested accommodation from majority of job duties or at the very least assistance by co-workers in performing duties similar to pre-pregnancy employment. Despite terminated status, the employer again considered reasonable accommodation but again refused same based on work policy.

Under both Title VII and the PDA, the issue of pregnancy-related complications was a case of first impression in the Seventh Circuit; however pregnancy itself has long been protected under federal law. Title VII prohibits employment discrimination on the basis of sex and the Pregnancy Discrimination Act (PDA) explicitly extends Title VII protection to pregnant women as pregnancy is a proxy for gender, and, therefore, discrimination against pregnancy is discrimination against women.

The PDA requires an employer ignore pregnancy and fairly treat pregnant employee the same as if no pregnancy existed. Therefore, an employer is not required to provide an accommodation to a pregnant employee unless it provides the same accommodation to its similarly situated non-pregnant employees. In the case at bar, the employee first unsuccessfully argued her employer treated employees with a qualified disability or work related injury more favorably by providing accommodation to disabled and work-related injured employees but refusing accommodation to all other employees requesting accommodation.

However, the Seventh Circuit reasoned the policy complied with the PDA because it did, in fact, treat non-pregnant employees the same as pregnant employees – both are denied an accommodation of light duty work for non-work-related injuries. The PDA merely required accommodation policies, in this case, be “pregnancy-blind,” in order to be valid.

Second, the employee unsuccessfully argued she suffered unfavorable treatment post-pregnancy as compared to pre-pregnancy because other employees assisted the employee in performing job duties before pregnancy but after pregnancy, the employer denied request for the same assistance or accommodation. The Seventh Circuit reasoned for purposes of Title VII/PDA, a request for an accommodation was materially different than a request for assistance. Co-workers assisting Employee before pregnancy did so completely voluntarily in a spirit of teamwork but any co-worker was free to decline request and under no obligation to provide assistance. However, if Employer granted request for assistance, only then would duties be formally modified to light duty work, and the assistance given by co-workers now obligatory.

ADA and Retaliation

The Americans with Disabilities Act (ADA) prohibits discriminating against a qualified individual with a disability of a physical or mental impairment substantially limiting one or more of the major life activities of such individual. A medical condition by itself does not constitute a disability. Pregnancy cannot be called impairment and although pregnancy per se is not covered by the ADA, the Act does not necessarily exclude all pregnancy-related conditions and complications.

Yet, even if pregnancy was a physical/mental impairment this arguable “impairment” must still substantially limit an individual. Factors considered include the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

The Seventh Circuit reasoned short-term, temporary restrictions, with little or no long-term impact, are not substantially limiting and do not render a person disabled for purposes of the ADA. Pregnancy is, by its very nature, of limited duration, and any complications arising from a pregnancy generally dissipate upon birth. However, dictum in the opinion appears to indicate if pregnancy-related complications were not of limited duration but rather long-term limitations then an employee would be disabled with an impairment substantially limiting a major life activity, namely reproduction. The Seventh Circuit remained silent on examples of when pregnancy-related complication rose to the level of a disability but it appears any chronic, long-term, or permanent impact such as infertility or psychological conditions resulting from the emotional distress of a miscarriage may in fact be considered, or at least argued in the future, a disability within the ADA.

Finally, the Seventh Circuit held the employer did not retaliatorily discharge the employee reasoning the employee suffered no adverse employment action after her request for reasonable accommodation. The employee was no longer employed at the time of the request for accommodated. Therefore, there was no evidence of retaliation because there was no action yet for the employer to retaliate against. Further, the employer attempted to delay termination as long as possible by paying all available sick and vacation leave pursuant to policies.

Recommendations

First and foremost, the abovementioned precedent does not allow for blanket protection when terminating pregnant employees. Employers with similar policies allowing accommodation only to qualified individuals, namely the disabled and injured workers, should ensure such policies comply with federal law. As previously reported in this KC&A Update, the ADA is very clear U.S. employers are required to engage in the interactive process and conduct an individualized assessment to determine supplying a reasonable accommodation to employees upon request. Please be advised “blind” adherence to attendance requirements and auto-termination presents the risk of seven figure exposure.

In order for employers to prevent and protect against claims by pregnant employees, we recommend following the same techniques used in considering accommodation for disabled or work related injured employees as well as:

1.         Maintaining “pregnancy-blind” accommodation polices;

2.         Declining to order co-workers to assist pregnant employees;

3.         Delaying termination by paying all available sick and vacation leave;

4.         Refusing to overlook absences of non-pregnant employees upon the decision to auto-terminate for failing to return to work;

5.         Denying requests to accommodate other non-pregnant employees not qualifying for accommodation according to work policy;

6.         Avoiding the appearance of more favorable treatment amongst employees;

7.         Carefully considering reasonable accommodation potential under ADA and ability to perform the essential job functions of the position despite the fact employee does not qualify for accommodation according to policy;

8.         Requesting confirmation of restriction prior to termination;

9.         Determining whether pregnancy complication may result in chronic, long-term, or permanent impairment by keeping in contact with treating doctor as well as requesting suggestions whether any open positions fit the restrictions, allowing the employee to return to work;

10.       As always, documenting all steps thoroughly and referring with defense counsel when necessary.

9-6-11; Hey, Mitch and Ron, wassup with the WC PPO thing?

The law was voted for by the Illinois House and Senate in May. It was signed by Governor Quinn on June 28, 2011. Looking at a calendar, it appears we are now way into September. We assume that is enough time to do what the legislature wanted at least ninety days ago.

We have been advised the Illinois Department of Insurance has provisionally allowed one application for approval as a WC PPO. There are lots and lots of other applications pending.

The WC Commission seems stuck in the mud on approving and promulgating the “opt-out” form that we think an eighth-grader could write—for easy reference “steal” whatever they use in Kentucky, that has the same concept.

Conspiracy theorists are starting to feel the claimant bar and Illinois State Medical Society may be causing friction and foot-dragging because they don’t want it in place.

In our view, the sooner our defense clients start saving money, the better.

So, let’s rock and roll, fellows or what is it going to take to get this in place?

9-6-11; Why do Illinois doctors continue to find injured workers to be gimps, cripples and special needs?

We understand the terms ‘gimps, cripples and special needs’ are awful discriminatory terms for the folks who require reasonable accommodation to work. However, it is our opinion this is what many Illinois OccHealth doctors/surgeons are effectively doing in constantly setting “permanent restrictions,” effectively barring such individuals from the workplace or their trades for life. We also feel many Illinois labor unions are complicit in the process. We are getting madder and madder to read what has happened with Illinois’ “china doll” construction, medical industry and trucking workers. We are completely sick and tired of hearing doctor after doctor finding Illinois injured workers have permanent restrictions and assure all of you it is our view they are openly or implicitly violating federal law for them to do so. In our view, it is morally and ethically wrong and should be stopped.

You may ask what is a “china doll” construction worker, medical industry or trucking worker? Well, if you aren’t sure, the Illinois WC system wildly awards/rewards high-wage workers who learn the ropes and find ways to appear to be looking for work, but magically can’t find a job. We think “un-finding” work is one of the easiest things anyone can do. What is more problematic are the doctors/surgeons who foster this legal concept at its inception by implementing the magical and counterproductive model of so-called permanent restrictions.

We have repeatedly told our readers permanent restrictions are a “golden diagnosis” in this state. An injured worker and a politically connected lawyer can make hundreds of thousands or even millions with such a medical finding. One purpose of this article is to let doctors, nurses, CRC, attorneys, Arbitrators/Commissioners and everyone else in the Illinois workers’ compensation system it is our strong view this paradigm runs afoul of federal law—the Americans with Disabilities Act. Following the parameters of the ADA, it is politically incorrect and basically shameful to assess an injured worker with permanent restrictions. In our view, it is the equivalent of medically finding the worker to be an incurable gimp or a cripple—once you find they are gimpy, gosh knows no one else will have them, right? We feel it is wholly negative, discriminatory and wildly unproductive to take that approach to someone with a mild to serious work injury.

Right now, as you read this we have:

A.    One claim with a physical therapy supervisor who suffered a simple burn to one thumb. A “pain doctor” most of you know found her to be magically but permanently incapable of working for the rest of her life due to non-diagnosable subjective pain—all diagnostic testing is grossly negative. The Arbitrator bought into her silly story and provided total and permanent disability benefits at a projected lifetime cost to an Illinois hospital in the amount of about $2.4 million dollars. Please note all of this is for a burned thumb that healed in about two weeks. Yes, not one but two IME doctors said she is grossly normal and there is nothing wrong with her. Yes, the claim is pending on appeal before the IWCC.

B.    Another claim by a construction worker with cubital tunnel syndrome. He has been treating with Dr. A for months and months and months. Dr. A sent him to a “pain doctor” who found equal range of motion in both arms and strength equal. Based on that medical finding, all benefits are cut-off and an emergency petition is expected any day. The settlement demand for a simple elbow surgery is $450,000 based upon a claim this worker is certain to have permanent work restrictions when and if counsel can find a way to get him into an FCE. As we have told all of you, FCE’s are basically hilarious and completely non-scientific as a means to determine if a worker does or doesn’t have “permanent restrictions.” As we have told all of you, lots and lots of claimant attorneys are not sending their claimants to FCE’s themselves—who cares what the doctors might say, let’s get an FCE that will provide permanent restrictions or “gimp-dom.”

C.   Another claim by a trucker who is claiming he can’t drive a truck and can’t do basically anything. His next-door neighbor learned of his tale of woe and started to videotape him while he was out and about. She had hours of tape documenting he could literally do hundreds of things, like gardening and riding ATV’s. In our view, there is no question, he can work and might need some reasonable accommodation to do so. Our client paid for computer training to later find out he was running a computer-tuning company. Based upon alleged “permanent restrictions” an Illinois Arbitrator has awarded total and permanent disability benefits. Yes, the matter is pending on appeal.

What is wrong with this picture? Well, the Americans with Disabilities Act of 1990 (ADA) is a law that was enacted by the U.S. Congress in 1990. It was signed into law on July 26, 1990 by then President George H. W. Bush and later amended with changes effective January 1, 2009. The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. In simplest terms, it is against the law to discriminate against folks who might otherwise have “permanent restrictions.” Obviously that simple concept may not apply in what one of our clients aptly calls the “People’s Republic of Illinois.”

Basically, the overall legislative package was to forever end the awful concept of calling or even referring to injured workers and prospective workers as gimps, cripples and physically challenged people. The idea was to stop the concept of workers and prospective workers ever having “permanent restrictions.” Basically, the goal is to have U.S. industry employ folks who need help or accommodation to be employed. We truly feel the concept of lifetime permanent restrictions is totally negative and counterproductive.

In our view, if a claimant has a medical problem the treating doctor should avoid a negative approach and they should indicate what the patient can do without accommodation and what he/she can do with reasonable accommodation. There should be no hint of the negative concept of “restrictions” as we feel it is the equivalent of shamefully calling the patient a gimp, a cripple or physically challenged. We urge physicians and surgeons to focus on the much more positive concept of focusing on the ability for a worker to get back into the workforce with mild, moderate or significant but reasonable accommodation. We further urge Illinois labor unions to follow the same path and stop barring injured workers from your membership.

Following the intent and overall concept of ADA, medical and job discrimination may include, among other things, limiting or classifying a job applicant or employee in an adverse way, denying employment opportunities to people who truly qualify, or not making reasonable accommodations in respect to known physical or mental limitations of disabled employees. It is also discrimination against the arguably disabled to not provide needed accommodations in training. U.S. employers can use medical entrance examinations for applicants, after making the job offer, only if all applicants regardless of permanent restrictions or disability must take it and it is treated as a confidential medical record.

We ask all of our readers, if a construction worker breaks an ankle—can the treater indicate the worker is forever barred from climbing a ladder again and therefore forever precluded from his/her lifetime career in construction? Instead, shouldn’t the doctor say the worker with a broken ankle needs reasonable accommodation to include implementation of a better ladder to return to his/her lifetime work by employing a ladder that is effectively a staircase with a railing on both sides. Such “staircase ladders” are available at all major big-box retailers right now. In our view, most Illinois physicians treating injured workers are much more likely to opt for the easy path of granting their patients “permanent restrictions” and almost never think outside-the-box for ways to reasonably accommodate a return to the same job. Similarly, most Illinois labor unions almost never focus on what a carpenter, iron-worker or electrician needs to get back on their job rolls—they would much sooner have that worker be cast to the side as a gimp or cripple and force union contractors to only hire what they feel are arguably “healthy” workers. The concept sounds good to union bosses but it is against U.S. law!

Maybe we are going to have to advise our clients to file EEOC complaints against a doctor (or three) or a union (or four) to get them to start implementing ADA concepts in their day-to-day practices to get their attention and move into the 21st Century and stop routinely finding injured workers to be gimps, cripples and physically challenged and bar them from the workforce with accommodation. In our view, doctors and labor unions will only stop the negative concept of “permanent restrictions” when they are forced to do so.