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‘Unable to Socialize’ Doesn’t Necessarily Mean ‘Unable to Work’

by Jonathan C. Sterling

If an employee whose job involves talking on the phone and using a computer states under oath that he is unable to perform those tasks because of a disability, it’s logical to assume he can’t do his job. However, as a recent federal appellate court decision demonstrates, that may not always be the case.

Americans with Disabilities Act (ADA) Compliance Manual

Accommodated, then not
In 1988, Robert DeRosa began working for National Envelope as a customer service representative. His job entailed quoting prices to customers and processing orders.

Around 2002, he suffered a traumatic injury to his right leg. As a result, he suffered from venous insufficiency, a condition that can cause swelling, ulcers, and infections. His doctor instructed him to limit the use of his right leg, avoid sitting or standing for prolonged periods, and elevate his leg above his heart at regular intervals. He was also told to work from home if possible.

National Envelope agreed to accommodate DeRosa. It provided him with remote technology, including a telephone, computer, and fax machine, and allowed him to work from home.

In October 2004, the new CEO rescinded the accommodation. DeRosa was told he could no longer work at home and that he would either have to return to work at the corporation’s facilities or his employment would be terminated.

DeRosa, understanding that his medical condition wouldn’t allow the change, informed his supervisor that he couldn’t return to work on- site, and his employment was terminated.

National Envelope encouraged DeRosa to apply for social security disability insurance benefits, and in November, he did. He stated in his application that in October 2004, he became unable to work because of his condition and that he remained disabled. He also stated that he could no longer commute and had to work from home.

In a separate application for state disability benefits in December, he was asked about limitations on his ability to socialize, to which DeRosa stated he was no longer able to speak on the phone or work on a computer because of the pain he experienced.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination and the ADA

This one’s for the courts
DeRosa filed a lawsuit against National Envelope claiming that his termination violated the Americans with Disabilities Act (ADA). The company asked the court to throw out the case before trial, arguing that he couldn’t prevail because he wasn’t able to perform the essential functions of the customer service representative job, even when provided with a reasonable accommodation.

The company argued, and the court concluded, that DeRosa’s statements on his state disability application form prevented him from showing that he could perform the essential functions of the job. The courts focused on his statement that he couldn’t speak on the phone or use the computer because of pain and reasoned that those limitations rendered him unable to perform the essential functions of the job.

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Let’s try this again
DeRosa appealed to the Second U.S. Circuit Court of Appeals, arguing that a jury should be allowed to decide whether the statement on the application meant he was unable to perform the functions of his job. The Second Circuit agreed, concluding that the lower court had prematurely dismissed the case.

The appellate court reasoned that his statements about not being able to talk on the phone or use the computer were made relative to his social, not work, capabilities. The court found this to be an important distinction because DeRosa might have been willing to endure the pain to perform and keep his job even if he wasn’t willing to do so for social purposes. A jury will have to decide that issue.

National Envelope also argued that DeRosa’s statements to the Social Security Administration that he was disabled and unable to work precluded his claim. The Second Circuit recited a previous U.S. Supreme Court decision in which the Court held that a statement of disability on an application for disability benefits doesn’t preclude the argument that one could, with reasonable accommodation, be gainfully employed.

Conclusion
Don’t assume that just because an employee has applied for disability benefits that he is disabled from working. He may well be able to work with reasonable accommodations. You should engage in an interactive process with the employee to determine what accommodations are needed for him to continue working and whether those accommodations are possible.

1 thought on “‘Unable to Socialize’ Doesn’t Necessarily Mean ‘Unable to Work’”

  1. This sounds like Orwellian doublespeak. It undermines the term disability by allowing different uses in different contexts. Sorry, but that is just stupid. To take one or two lines out of context defies common sense.

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