By Jennifer Asbrock, JD, Frost Brown Todd LLC
It’s no secret that employment lawyers avoid suing Kentucky employers in federal court because of the “employee-friendly” dismissal standard in state court. Employees assert discrimination claims under the (KCRA) rather than federal law in an attempt to avoid federal court. However, that strategy comes with a price in disability discrimination claims. A Kentucky court recently ruled that the KCRA contains a narrower definition of “disability” than the federal Americans with Disabilities Act (ADA).
Daryl Laferty worked as a United Parcel Service (UPS) package driver from 2000 to 2013. UPS’s package cars are commercial vehicles, so drivers must maintain U.S. Department of Transportation (DOT) certification.
Some medical problems may disqualify an employee from maintaining DOT certification. However, UPS permits drivers who lose DOT certification (because of medical reasons or otherwise) to hold another job for up to 1 year while they attempt to regain certification.
In December 2011, Laferty missed work because of migraines. He returned to work in January 2012, but his migraine medication disqualified him from operating commercial vehicles off private property under the DOT’s rules.
He could still drive his personal car, and he could still drive package cars on UPS’s property. He just couldn’t drive package cars on public roads. He worked as a clerk while his doctor prescribed other medications that would let him resume driving with DOT certification. Laferty never sought a waiver or an exemption from the DOT, and in mid-2012, he lost his DOT certification.
Laferty worked as a clerk until August 2013. He tried four alternative medications that would allow him to drive commercially, but none of them relieved his symptoms. UPS twice encouraged him to request an accommodation so the company could determine whether he had a disability and engage in the interactive process to see whether a reasonable accommodation would permit him to regain DOT certification. Both times, he refused to cooperate and denied having a disability.
Laferty simply demanded to work as a clerk indefinitely, but UPS declined his request. He worked under a union contract that provided him only two options: (1) regain DOT certification or (2) seek an accommodation. Laferty refused both options. In August 2013, UPS placed him on leave.