by Amanda M. Jones
Disability discrimination claims are increasing in Hawaii. Case in point: A Hawaii employee sued his employer for disability discrimination even though the employer provided a year’s worth of medical leave and agreed to transfer the employee to a different position to accommodate his heavy lifting restriction. A Hawaii judge recently dismissed the case after concluding the employee’s discrimination and retaliation claims had no merit.
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Heavy Lifting Required
According to the court’s order, “Alec” began working at Liberty Dialysis-Hawaii in 2006 and held a variety of jobs. In 2011, he applied for and was awarded a dialysis technical specialist position. The responsibilities of the job included repairing and maintaining equipment and other systems, and the job description indicated that the job required lifting 75 to 100 pounds.
Seven months after accepting the dialysis technical specialist position, Alec injured his shoulder at home and sought leave from work. A doctor’s certificate stated he was “totally incapacitated” and unable to work. The employer approved his request for leave. Alec later requested more leave, which was also approved.
About 2 months after his injury, Alec asked Liberty’s HR manager if he could return to his job in a “light-duty” capacity in which he would be excused from lifting. The manager informed him that lifting was an essential part of his position and that the company had no light duty available.
Although light duty was unavailable, the company permitted Alec to remain on medical leave for an additional 10 months. During that time, he provided updated medical certifications, all of which stated he was unable to lift heavy weights and was not allowed to engage in repetitive overhead lifting. While on leave, Alec filed his first charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC).
Employer Offers Transfer Option
After Alec filed the EEOC charge (and while he was still on leave), Liberty’s HR manager asked if he would consider applying for an internal transfer to a position that did not require heavy lifting. The next month, he applied for a different position with the company, and his transfer to that position was approved. He then filed a second EEOC charge alleging disability discrimination and retaliation. Alec remained in the new position for about a year before suffering another injury that left him unable to perform his job.
After the EEOC charges were dismissed, Alec sued Liberty for disability discrimination and retaliation. The employer filed a motion asking the court to dismiss the lawsuit without a trial because the claims had no merit.
Disability Discrimination Claim Fails
Regarding the disability discrimination claim, the court explained that an employee must have evidence that he (1) was “disabled” as defined by the Americans with Disabilities Act (ADA), (2) was a “qualified individual” (i.e., he was able to perform the essential functions of his job with or without a reasonable accommodation), and (3) suffered an adverse employment action because of his disability.
The court dismissed the claim because Alec could not establish the second element. Thus, the court did not need to make a determination regarding the other two elements. The court explained that during the 2 months immediately following Alec’s shoulder injury, he was “totally incapacitated” and was not able to perform his job.
During the 10-month period after his total incapacity, Alec was able to work but was restricted from heavy lifting. In evaluating whether heavy lifting was an essential function of his position at the time of his injury, the court considered the statement in the job description indicating that lifting 75 to 100 pounds was required.
The court said the job description was not dispositive, but there was undisputed evidence that lifting more than 50 pounds was an essential function of Alec’s position. It was also undisputed that Alec was not able to lift more than 30 pounds during the period in question.
The ADA requires employers to provide reasonable accommodations to disabled employees. However, the court explained that the ADA “does not require an employer to exempt an employee from performing essential functions of a position or to reallocate essential functions of the position to other employees.”
Accordingly, Liberty did not violate the ADA by refusing Alec’s request to return to work with his lifting restriction still in place. Moreover, the employer accommodated him by allowing him to take medical leave, which has been recognized as a reasonable accommodation under the ADA.
Medical leave may not have been Alec’s preferred accommodation, but the court explained that an “employer is not obligated to provide an employee the exact accommodation he requests or prefers” so long as a reasonable accommodation is provided.
The court found that by asking Alec if he would consider transferring to a job without a heavy lifting requirement and accepting his transfer application, the employer provided him a reasonable accommodation.
The court explained that reassigning or transferring a disabled employee “to a lesser position is a reasonable accommodation when there [is] no reasonable accommodation that would allow the employee to perform the essential function of his previous position and there [is] no vacant equivalent position to which the employer could reassign the employee.”
Accordingly, the court found that Liberty had reasonably accommodated Alec and that he was unable to perform the essential functions of the position he held at the time of his injury with or without a reasonable accommodation. As a result, his disability discrimination claim had to be dismissed.
Retaliation Claim Also Fails
The court also dismissed Alec’s retaliation claim. Alec engaged in protected activity by filing a charge of discrimination with the EEOC. However, his retaliation claim failed because he did not demonstrate that he suffered an adverse action as a result of the protected activity.
The court concluded that his voluntary decision to apply for a transfer to another position was not an adverse action. The court noted that the HR manager’s discussion with Alec to see if he wanted to apply for a transfer was required as part of the ADA’s interactive process, and thus, it could not be considered an adverse employment action.
Likewise, providing him a reasonable accommodation that he voluntarily accepted (i.e., the transfer to a new position) was not an adverse employment action. Pfendler v. Liberty Dialysis-Hawaii, LLC, No. 14-377 (D. Haw., Sept. 22, 2016).
Bottom Line
This case illustrates that employers are not required to grant every accommodation request made by a disabled employee. In this case, exempting the employee from the heavy lifting requirement was not reasonable because heavy lifting was an essential function of the job. However, in some jobs, heavy lifting is not an essential function.
Accordingly, this case should not be viewed as authorizing employers to reject the return-to-work requests of all employees with lifting restrictions. The specific circumstances of the position are critical and should be carefully evaluated before denying an employee’s request to return to work with restrictions.
Amanda M. Jones, an editor of Hawaii Employment Law Letter, can be contacted at ajones@cades.com.