HR Management & Compliance

Old ‘Disability’ Definition Applies to Employee’s Injury, Says 10th Circuit

There is a growing legal precedent regarding when courts can evaluate an Americans with Disabilities Act claim under a new, broader disability definition: the adverse employment actions at issue must have occurred after the Jan. 1, 2009, effective date of the ADA Amendments Act.

For an employee who allegedly was discriminated against in 2008, this meant his ADA claim failed. The 10th U.S. Circuit Court of Appeals affirmed a lower court’s dismissal of ADA and Family and Medical Leave Act claims against his employer. The employee, a field claims adjuster, had sued the employer when he lost his job after injuring his knee so badly that he said it prevented him from climbing ladders and performing roof inspections, two essential functions of his job. The case is Wehrley v. American Family Mutual Insurance Co., 2013 WL 1092856 (10th Cir., March 18, 2013).

Because the facts in the case took place before the ADAAA’s enactment, the appeals court applied the law as it stood in 2008, when a more-limited definition of disability existed that the employee could not meet. By following the letter of the old statute, the 10th Circuit aligned with its sister circuits in concluding that the ADAAA does not apply retroactively. (See “ADA Amendments Act Is Not Retroactive, 4th Circuit Finds, Agreeing with Other Courts.”)

Facts of the Case

Scott Wehrley worked for nine years as a field claims adjuster for American Family Mutual Insurance Co. While investigating a roof claim in June 2007, Wehrley fell from a ladder and injured his knee and back. He filed a workers’ compensation claim, and his supervisor assigned him to desk work until he could walk without crutches.

Six months after the fall, a doctor removed all of Wehrley’s work restrictions. However, Wehrley challenged the health care assessment and underwent a separate, independent medical examination. This second exam resulted in restrictions that prevented Wehrley from performing field claims that involved roofs or ladders.

In July 2008, a physician determined that Wehrley needed knee surgery, but Wehrley postponed the July 30 knee operation because AFMIC’s workers’ compensation insurer, Sentry, declined coverage.

Wehrley told his supervisor on Aug. 6 that he planned to apply for FMLA leave once he heard back from his personal insurance company concerning coverage for surgery.

AFMIC informed Wehrley on Aug. 22 that his job would be in jeopardy if he could not return to roof claims. His supervisor told him that “climbing roofs” was an important part of the job and Wehrley’s failure to perform roof inspections had increased the work of other adjusters.

One week later, AFMIC fired Wehrley and cited his inability to perform roof inspections as a reason for the termination.

Employer Takeaways

Under the ADAAA, employers must construe the term “substantially limited” broadly and in favor of expansive coverage, which may have strengthened Wehrley’s argument had that language applied to his claim.

Furthermore, mitigating measures may not be taken into account when determining whether an employee has a disability. He or she must be evaluated in an unmitigated state.

Employers have a duty, in certain circumstances, to reassign a disabled employee to a vacant job within the company. But an employer is not required to reassign an employee who is: (1) unable to perform the essential functions of his or her current job; and (2) not disabled as defined by ADA.

To request reassignment, an employee need not use “magic words,” but must convey to the employer a desire to remain with the company despite his or her disability and limitations. Because Wehrley was not considered “disabled,” it did not matter to the court that he may have been qualified to perform the essential functions of another position.

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