Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

Main navigation

SSDI

This is Outrageous! April Fools:-)

By Leave a Comment

I

This is just outrageous!* People shouldn’t say these things, such as:**

  1. “I’m not going to change anything with respect to IEP’s. After all, appropriate progress means anything you want it to mean.”
  2. “Since I don’t want your money, I can do what I want.”
  3. “A cool website is more important than an accessible website. Besides, my business is entirely on the website, so no worries.”
  4. “I hired someone to give me the down and dirty on my hotel being in compliance with the ADA. So, if it isn’t, not my problem since that person has to indemnify me anyway.”
  5. “Just more efficient if I accommodate the same disability in the same way regardless of the individual.”
  6. “Judges need not worry about accommodating litigants with disabilities since they have judicial immunity anyway.”
  7. “A person on a jury with a disability, NAAAAH.”
  8. “For real… affirmative action for persons with disabilities? What is next?
  9. “You can’t do the essential functions of the job, hit the road.”
  10. “You have to be at work unless of course, I-85 has been destroyed.”
  11. “Don’t worry about reasonable accommodations unless the employee says please.”
  12. “Ignorance of the law is no excuse unless you are the police.”
  13. “Addicts are addicts, and so I am going to treat drug addicts and alcoholics in the same way.”
  14. “You have got to be kidding; athletes subject to the ADA. Good Grief.”
  15. “Since Auer is dead anyway, I don’t need to care about what an agency says about how it would interpret its own regulations.”
  16. Dogs!
  17. “I love people on SSDI since I don’t have a duty to accommodate them.”
  18. “A disability is a get out of jail free card.”

 

*APRIL FOOLS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

** My thanks to Robin Shea for giving me the idea and the courage to do this April fools post. Her April fools blog entry is really cool!

II

Can they really do that or say that?

  1. Relying on “appropriate progress,” to think that the old world of IEP’s can remain is very dangerous. It is clear when the Court used the term “appropriate progress,” they had something quite a bit different in mind than the old paradigm. A better way to look at it would be to think of it in terms of “progress appropriate…” See this blog entry.
  2. If you refuse to take money, because you want to discriminate, that is not going to work as seen here.
  3. This one is really complicated. See my friend and colleague’s, Richard Hunt, blog entry on it. It is indeed a mess. For now, the thing to keep in mind is meaningful access.
  4. The ADA is a nondelegable duty as discussed here, but see here as well.
  5. The ADA requires an individual analysis. Do you really need a citation for that?:-)
  6. Judges do have to worry about accommodating litigants with disabilities even though they have judicial immunity. See here and here.
  7. Person’s with disabilities do have a right to serve on juries. See here.
  8. Not outrageous at all; A person opposed to affirmative action for persons with disabilities just may have a case as discussed here.
  9. Just because a person cannot do the essential functions of the job, does not mean they can’t do the job with reasonable accommodations. See here for example. For other examples, just plug-in “essential function,” into my blog search engine, and you will see many different blog entries discussing essential functions.
  10. This particular statement is happening all over the Atlanta area. As many of you may be aware, it appears that a group of homeless people started a fire and that caught a bunch of flammable items on fire as well as items that made the heat even worse. The result of which is that I-85 completely busted up in a very busy corridor of Atlanta. Employers are encouraging their employees to telecommute. So, I sure hope they have telecommuting policies. Also, I sure hope they have read this blog entry as well.
  11. Magic words are not required as discussed here. See also ¶ II 2.
  12. Not exactly. The police get some slack but not a free pass.
  13. It is a real common misperception that drug addicts and alcoholics are treated the same way under the ADA. They aren’t. See this blog entry and its comments.
  14. Athletes are most definitely covered by the ADA. See this blog entry and comments for example.
  15. Auer (the doctrine that gives deference to agency interpretation of its own regulations), will shortly be dead, but that doesn’t mean a guidance can’t be great preventive law, such as here.
  16. As everyone knows, I love dogs! See here and here for example.
  17. Outrageous, but complicated.
  18. A disability is not a get out of jail free card.

Hope you enjoyed this blog entry. Remember, it was written on April fools. Good luck to everyone on the upcoming baseball season. The prognosticators are saying the Cubs and the Tribe will be back, but we will see.

Is attendance always an essential function of the job?

By 5 Comments

When the ADA first was enacted back in 1990 and went into effect in 1992, the Internet was just getting started. Back then, it was pretty obvious to everyone that an essential function of the job must mean showing up for it. Since then, technology has evolved quite a bit so now many people can do their work from just about anywhere. Therefore, whether attendance is an essential function of the job is now a case-by-case decision. How does one go about figuring out whether attendance is an essential function of the job? In my opinion, the leading case on this issue is the case of Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012). In this case, a neonatal nurse had fibromyalgia (a rather hard condition for physicians and patients to get a handle on and one that can limit effective sleep and which has as one of its components chronic pain/nerve pain throughout the body). As a result of her fibromyalgia and how it affected her, Samper was unable to regularly come to work in accordance with the employer’s attendance policy. Eventually, she was discharged for several reasons, including having seven absences in the 12 month period as well as a general problems with attendance. She then filed suit alleging violation of the ADA.

In affirming summary judgment for the employer, the Ninth Circuit held that regular attendance is an essential function of the job where the job requires attendance. The court goes on to give some great preventive law tips as to how you could know when that job requires attendance. A job requires attendance according to Samper, where the employee must work as part of the team, the job requires face-to-face interaction with clients and other employees, or the job requires the employee to work with items and equipment that are on site. With respect to Samper, the Ninth Circuit said that all these requirements were satisfied considering the nature of being a neonatal nurse and the stakes involved for the hospital’s patients when the hospital is not staffed adequately.

A recent case that follows Samper is Mecca v. Florida Health Services Center, Inc., 2014 WL 408431 (M.D. Fla. February 3, 2014). In this case, the plaintiff was employed as a peripherally inserted central catheter nurse. Such a nurse inserts a peripherally inserted central catheter line into patients, which is an intravenous catheter that is typically inserted through a large vein generally in a patient’s upper arm and then threaded into the patient until it rests in the body directly next to the patient’s heart. It is a job that requires adherence to proper procedures and strict sterile techniques in order to avoid high risks of infection. Mecca’s disability involved panic attacks and anxiety. The accommodation he sought was in the form of leave. With respect to his particular symptoms, they included nervousness, anxiety, incontinence, and sleeplessness, among other things. After several consecutive weeks on FMLA leave, he brought a medical note from the doctor releasing him to work three days a week for 8 to 12 hours a day. However, on his first day at work back from leave, he did not respond to any request for consults, which are requests to assess a patient to insert a line. He also left for the day prior to the end of his shift. After numerous communications with the human resources department indicating that he would be subject to discipline, including termination, for failing to respond to consults, he submitted his resignation. He subsequently applied for Social Security disability benefits claiming he was unable to work as of May 8, 2010 and he was successful in that application.

In finding for the hospital, the Middle District of Florida found Samper persuasive. It also found that the role of the nurse that did what he did was very similar to one of a neonatal nurse. Accordingly, the court found that attendance at work was an essential job function of his job. The court also found that the plaintiff by filing for Social Security Disability Income was judicially estopped from pursuing his ADA case since he did not give an explanation sufficient to warrant a reasonable juror to conclude that he could perform the essential functions of the job with or without reasonable accommodation notwithstanding the representations made in the application for Social Security Disability Income.

Takeaways:

1. When trying to figure out whether an essential function of the job includes attendance, the first step should be to look at the Samper criteria.

2. Keep in mind that even a job that satisfies all these criteria upon initial review may not be a job where attendance is an essential function of the job. For example, the Fifth Circuit in Carmona v. Southwest Airlines Company, 604 F.3d 848 (5th Cir. 2010), held that a flight attendant for Southwest Airlines may not have been in a job where attendance was an essential function in light of the airlines extremely lenient attendance policy, which thereby created a question of fact for the jury to decide.

3. It would behoove the employer to have data to back up its contention with actual practice that attendance is an essential element of the job regardless of whether the particular job at issue meets the Samper criteria.

4. On the plaintiff’s side, if the plaintiff is taking on an ADA case, the plaintiff’s attorney needs to explain the risk of filing for Social Security Disability Income should the client be suggesting that that is something he or she wants to do. If the attorney is an SSDI attorney, that attorneys should make it a part of a routine part of his or her practice to explain how the filing of an SSDI claim may compromise a future ADA claim. Failure on the part of the plaintiff’s attorney or the SSDI attorney to make that explanation may lead to a legal malpractice claim. For a blog entry of mine discussing judicial estoppel, take a look at this particular blog entry. With respect to legal malpractice, I wrote an article on it for the DuPage County Bar Association Journal, The Brief. I expand on that article on pages 142-143 of my book. On the defense side, whenever a person sues for discrimination on the basis of disability in employment, it needs to be a discovery item as to whether that person filed an SSDI claim.

SSDI v. ADA and the doctrine of judicial estoppel

By 3 Comments

Person works for a company of over fifteen employees, develops a disability, and is terminated from her position because of that disability. She then files for SSDI. She then brings suit under the ADA for failure of the employer to reasonably accommodate her disability.

In these type of situations, the employer will invariably defend using the case of Cleveland v. Policy Management Systems, 526 U.S. 795 (1999), to argue that the claims made in the SSDI application were such that the plaintiff is estopped, or prevented, from claiming that he or she can do the job with or without reasonable accommodation and therefore, is no longer qualified and therefore is not protected by the ADA. In Cleveland, plaintiff filed for Social Security Disability Benefits and obtained them. Subsequently, he filed an ADA suit and claimed that he was not reasonably accommodated. To obtain SSDI, a person has to show that he is unable to perform any job in the economic marketplace.

In holding that judicial estoppel might apply but also might not apply in such situations, Justice Breyer, writing for the United States Supreme Court, reasoned as follows:

1. The pursuit and receipt of SSDI benefits do not automatically estop the plaintiff from pursuing an ADA claim. For that matter, the law does not erect a strong presumption against the plaintiff’s success in filing an ADA claim either. However, an ADA plaintiff cannot simply ignore her SSDI contention. To survive a motion for summary judgment, the plaintiff must explain why the information in the SSDI filing is consistent with showing that the plaintiff is otherwise qualified for the position at issue.

2. Justice Breyer took note of the apparent conflict between the ADA and SSDI, but proceeded to say the inherent conflict (the ADA saying, “I can do the job if I am reasonably accommodated” v. SSDI saying, “I can’t do any job in the economic marketplace), was not so severe that courts should apply a special negative presumption.

3. The ADA and SSDI systems operate completely differently from each other. For example, the SSDI system does not factor reasonable accommodation into its calculus. Thus, an ADA suit claiming that the plaintiff can perform the job with reasonable accommodation may be consistent with claiming the inability to perform a job or jobs without it.

4. Justice Breyer noted that people receiving SSDI can work under certain parameters.

5. Even with all this said, an ADA plaintiff cannot ignore the SSDI and ADA apparent contradiction; a sufficient explanation must be forthcoming. In order to defeat a summary judgment motion, the explanation must be sufficient to warrant a reasonable juror concluding that (assuming the truth of the claims made or the plaintiff’s good-faith belief in the truth of those claims made in the SSDI filing), the plaintiff would nonetheless perform the essential functions of the job with or without reasonable accommodation.

But this isn’t the end of the matter. The question becomes what can be said in the SSDI application so that judicial estoppel is not activated. For example, if a person in their SSDI application makes a general statement that they are unable to work, does that activate judicial estoppel? A case that directly dealt with this question is Molina v. Pocono Medical Center, 2013 WL 4520458 (M.D. Pa. August 26, 2013). In this case, the plaintiff was a registered nurse who suffered from an autoimmune deficiency. As a result, she frequently fell ill (for example, she had pneumonia 16 times between 2006 and 2009), and as a result she had to take vacation or medical leave a number of times throughout her employment. On May 24, 2010, she was exposed to a patient with MRSA, which caused her to contract MRSA pneumonia. As a result, she went on FMLA leave and was hospitalized for approximately 90 days. Her primary doctor, an internal medicine specialist, wrote her a note saying that she could return to work on June 19, 2010 providing she was not exposed to infected patients. That note was presented to the plaintiff’s immediate supervisor. The plaintiff’s supervisor would not allow her to return to work as a nurse, and the plaintiff then filed an ADA claim with the EEOC. Critically, for our purposes, she also applied for and was granted SSDI. In the application she simply stated that she was, “unable to work.” Naturally, the first thing the defense did was to defend on the grounds that the claim should be thrown out as a result of judicial estoppel vis-à-vis Cleveland . The court said that viewing the evidence in light most favorable to the plaintiff, that the SSDI grant did not preclude the plaintiff’s ADA claim and reasoned as follows:

1. The court began by noting that the ADA focuses on reasonable accommodations while SSDI focuses on the inability to work.

2. The court cited to Cleveland for the proposition that there are many situations where an SSDI claim and an ADA claim can comfortably exist side-by-side since SSDI claim to not take the possibility of reasonable accommodations into account.

3. As mentioned above, while an ADA plaintiff cannot ignore any contradiction between his or her SSDI and ADA claims, the plaintiff can still satisfy his or her burden by offering a sufficient explanation as to the discrepancy. IMPORTANTLY, the Molina court goes on to say that where there is no discrepancy between the ADA and SSDI claim, there is no need for an explanation. That is, the proper focus is not whether there was a general claim of inability to work on the SSDI claim, but rather on the factual contradiction between the two claims. Accordingly, the general assertion in an SSDI claim that an individual is unable to work due to a disability does not commit that plaintiff to any position as to whether the plaintiff could work if reasonably accommodated. Ultimately, if a plaintiff wishes to defeat summary judgment, the plaintiff’s explanation of the contradiction, if any, between SSDI and ADA claims must enable the reasonable juror to conclude that, assuming the SSDI claim was made in good faith, the plaintiff could still perform the essential functions of the job with or without reasonable accommodations.

4. Citing to a Third Circuit decision, Turner v. Hershey Chocolate USA , 440 F.3d 604 (3rd Cir. 2006), the Molina court said that any statements made in an SSDI application must be inferred to include the language of, “without reasonable accommodation.”

5. Aside from general claims of inability to work, the plaintiff provided the same information in her SSDI application that she provided in her complaint regarding her condition and ability to work vis-à-vis the ADA requirements of being able to perform the essential functions of the job with or without reasonable accommodations.

Molina takeaways:

1. At least in the M.D. of Pennsylvania, a general statement of being unable to work in an SSDI application will not run a plaintiff into the buzz saw of judicial estoppel.

2. A plaintiff when faced with a judicial estoppel claim from the defense will still need to show that they can perform the essential functions of the job with or without reasonable accommodations (i.e. that they are qualified or in Rehabilitation Act parlance, otherwise qualified).

3. At least in the Third Circuit, it will be assumed that an SSDI filing implicitly contains the language, “without reasonable accommodation.”

4. Outside of general claims of inability to work, from the plaintiff perspective, if the plaintiff can provide the same information in her complaint that she provided in the SSDI application regarding her condition and ability to work with respect to performing the essential functions of the job with or without reasonable accommodations, all the better. Keep in mind, that the one thing we don’t from this opinion is the context. That is, while we do know that she made a general statement about being unable to work in the SSDI application, we don’t know what was said with respect to performing the essential functions of a particular job in the SSDI application that she filed. Absent that knowledge, it is not exactly clear what the M.D. of Pennsylvania is asking SSDI counsel to do by this statement.

5. If you are an SSDI practitioner, it is imperative that the Cleveland case be thoroughly read and understood. Also, it is important to understand the real risk of legal malpractice if the attorney does not advise the client on the implications of filing for SSDI when an ADA claim is foreseeable. While I have written on that topic previously,in the fourth edition of my book coming out from the American Bar Association in just a few weeks, I expand on why the risk of legal malpractice exists in this situation. Keep in mind, the plaintiff employment lawyer also needs to be aware of judicial estoppel as well because it is quite possible that a client may say that they would like to go ahead and file for SSDI where they come to you for a situation involving discrimination on the basis of disability in violation of either the Rehabilitation Act or the ADA.