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Wide-ranging and challenging issues continue to arise under the Americans with Disabilities Act (ADA). Here are a few recently addressed by the federal appellate courts.

No Notice That Work Was Driving Employee Crazy. In Stewart v. St. Elizabeth’s Hospital and District of Columbia Dep’t of Mental Health, the U.S. Court of Appeals for the D.C. Circuit considered a notice issue under the ADA. Stewart worked as a housekeeping aide, and was transferred to a maximum security facility that houses mentally ill patients who are charged with or convicted of crimes. Stewart’s supervisors became aware of two instances in which she appeared emotionally shaken at work. However, when Stewart formally requested a transfer out of the facility, she merely explained that she did “not feel that well.” (Little did the hospital know that, ironically, she would later claim to have become mentally ill while working at the mental hospital.) A supervisor requested that she provide medical documentation to back up her transfer request. Instead of complying, Stewart left work and attempted suicide. She then sued the hospital and her supervisor, claiming they had failed to accommodate her under the Rehabilitation Act (the ADA counterpart for federal contractors). The D.C. Circuit affirmed the trial court’s dismissal of her suit, holding that the hospital lacked notice (either actual or constructive) of Stewart’s asserted mental disability. While supervisors had observed her in an emotionally upset state, the hospital could not be expected to attribute her reactions to a covered mental illness. And the supervisor acted in “an entirely appropriate manner” in requesting further information.

Pre-Offer Medical Inquiry Moves Case To Trial. In Harrison v. Benchmark Electronics Huntsville, Inc., the U.S. Court of Appeals for the Eleventh Circuit reversed summary judgment for the employer. Harrison was a temporary agency worker who was invited to apply for a full-time position. As part of that process, Harrison submitted to a drug screen, which tested positive for barbiturates. Harrison then explained that he suffered from epilepsy and had been prescribed the drugs to treat and control the condition. With that explanation, he was cleared by the employer’s medical service. Nevertheless, the supervisor who had invited Harrison to apply instructed human resources not to offer a position, and also instructed the temporary agency not to return him to the company. Harrison’s ensuing lawsuit alleged that the employer had engaged in an improper pre-offer medical inquiry, and that he was not hired and not returned to his temporary position based on a “perceived disability.” The Eleventh Circuit noted that the ADA provides that, during the pre-offer stage, an employer may not conduct a medical examination or make inquiries whether the applicant has a disability; an employer may only ask about the applicant’s ability to perform job-related functions. While an employer may ask follow-up questions in response to a positive drug test, the court concluded that Harrison had presented sufficient evidence for a jury to determine whether the questioning had gone too far.

Sleeping Just Two Or Three Hours Nightly Is Not A Substantial Impairment. Simpson v. Vanderbilt University involved a registered nurse formerly employed in the cardiac unit of the Vanderbilt Medical Center. While employed, Simpson was hospitalized for chest pain and heart palpitations. Thereafter, his sleep worsened and he took a leave of absence. Upon return to work, Simpson had several run-ins with a supervisor and coworker. One night, after claiming that he needed to leave work due to his heart condition, Simpson was involved in a physical altercation with another employee. Simpson was fired after review of the incident showed that he had left work without properly charting several patients. Simpson sued under the ADA, claiming that his discharge and the failure to transfer him to a day shift (to allow better sleep) constituted discrimination. The U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of his lawsuit. While sleeping is a major life activity, the court concluded, Simpson’s sleep problems (which he testified involved sleeping only two or three hours, five nights per week) did not rise to the level of a “substantial” impairment. Simpson was consequently not “disabled” under the (original) ADA. The court further held that Simpson did not establish a “regarded as disabled” claim. Although the evidence showed that his employer had knowledge of his health problems, it did not support the conclusion that his employer perceived his physical abilities to be impaired and affecting his performance. (The recent amendments to the ADA might alter this cases’s outcome.)

Alcoholic Employee Lacked Proof Of ADA Violation. In Vandenbroek v. PSEG Power, the U.S. Court of Appeals for the Second Circuit affirmed summary judgment for the employer, holding that Vandenbroek failed to demonstrate that he was a “qualified person with a disability.” Vandenbroek was discharged from his boiler utility operator job at the power company after violating the “no call - no show” policy. Vandenbroek alleged in his ADA lawsuit that he had been improperly discharged due to a covered impairment — his alcoholism. The appeals court held that, even if he had a covered disability, he would still need to establish that he could perform the essential functions of his job with or without accommodation. Reliable attendance for his scheduled shifts was found to be essential, given a utility operator’s need to monitor alarms to prevent a power outage or explosion. While management acknowledged that Vandenbroek performed adequately when present, Vandenbroek did not establish that his employer could rely on him to appear for work.

Jay C. Boger

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