REASONABLE ACCOMMODATION

The case of the disappearing medical restrictions

Have you ever informed an employee that you couldn't accommodate her medical restrictions, only to have her turn in, as if by magic, a new doctor's letter saying the restrictions have been lifted and she can continue working? Is the new doctor's note legitimate or just sleight of hand? In the following case, the employee's restrictions appeared to be just an illusion, so the employer made her job disappear.

For my next trick

Glena Tjernagel's part-time production job at The Gates Rubber Company entailed significant physical demands, including repetitive movement of the fingers, hands, legs, and feet, frequent bending, twisting, and lifting, and 40-pound lifting and carrying requirements. The job description also called for "[a] high percentage of attendance and on-time arrival" and the ability to work "[o]vertime[,] . . . includ[ing] Saturdays and Sundays when necessary." The accuracy of the overtime requirement became clear in 2005, when employees worked 22 Saturdays.

In May 2005, Tjernagel was diagnosed with multiple sclerosis (MS), but her diagnosis was later refined to clinical isolated syndrome, which differs only in the number of clinically diagnosed attacks the sufferer endures. Her symptoms included extreme fatigue, problems standing, walking, and breathing, short-term memory loss, and numbness and tingling in her body.

Tjernagel informed HR manager Connie Sorenson that she had MS, to which Sorenson replied that she could take more frequent breaks and sit down when she needed to and she should alert HR about anything else she might need. Tjernagel then began leaving her assigned position to sit down, often without giving notice or clocking out. Sometimes she wouldn't return to work at all.

During the summer, Tjernagel's supervisors indicated that her departures from the production line were hindering their ability to complete their work. The company asked Tjernagel to obtain a work capacity report (WCR) from her doctor. Dr. Bruce L. Hughes prepared and submitted a WCR on November 2, 2005.

Hughes listed several physical restrictions, including "[s]tanding restricted to less than 60% of shift" with "intermittent sitting vs. standing." He further noted that Tjernagel's condition "can come and go." Finally, he stated that she "knows what she can tolerate and can determine when certain things are going to aggravate [her] disease. [Tjernagel] can do other work, sedentary work if possible. No overtime." Sor-enson then called Hughes' office and learned the following:

[Tjernagel's] restrictions are permanent and progressive. They are intermittent, sometimes no problems and then there will be problems. Hopefully, [Gates] can find something more suited to [Tjernagel's] needs. She wants to continue working.

Tjernagel never worked overtime again and was never asked to. Nevertheless, on January 17, 2006, she was terminated because she couldn't work overtime and because of her other work restrictions.

Say the magic words

Tjernagel invoked the company's appeal procedure, which included peer review. She then asked the plant manager, Mark Cooper, if she could get her job back if her overtime restriction was removed. Although Cooper offered no opinion, Tjernagel proceeded to obtain a revised WCR from Hughes that was identical to the previous report in every way except it removed the overtime restriction.

The next day, Tjernagel provided a signed release to allow the company's physician to contact Hughes to discuss the matter. While the company's doctor was attempting to reach him, Hughes received a letter from Tjernagel's attorney advising him that contact with the company's doctor could be "problematic" because the questions Gates might ask could have legal implications that he might not fully grasp. As a result, Hughes didn't return the calls made by the company physician.

On March 21, 2006, Gates wrote a letter to Tjernagel informing her that since Hughes hadn't communicated with its doctor, the company would no longer pursue the exchange of medical information and would proceed with the next step in the process. The next day, Tjernagel's attorney told Hughes that he could now speak with the company's doctor, and he attempted to but never actually made contact. On April 10, he faxed the company a work release form stating that Tjernagel had informed him that she needed no accommodations and therefore she was cleared to return to work without restrictions.

On April 18, Tjernagel submitted her written appeal to the peer review committee, which consisted of three hourly workers and two managers from another Gates facility. Interestingly, she included the two WCRs listing her restrictions, but not the last report in which all of the restrictions were removed. The peer review panel voted unanimously to deny the appeal and uphold the termination.

Tjernagel then sued the company, claiming, among other things, a violation of the Americans with Disabilities Act (ADA). When her claim was dismissed by the lower court, she appealed to the Eighth U.S. Circuit Court of Appeals, which includes Minnesota.

Presto ― your case has vanished

The appeals court began its analysis of Tjernagel's claim by explaining that she first had to prove that she actually is a disabled person. To do so, she had to prove more than just an impairment that made it impossible to do her job. To be a bona fide disability under the ADA, the impairment must also substantially limit one or more major life activities.

The judges noted that despite Tjernagel's insistence in court papers that she suffers from such a limitation, she specifically told Sorenson in their November 2006 meeting that she didn't feel as if she was disabled. In addition, Hughes' last report specifically stated that she had no restrictions and required no accommodations. Therefore, she simply wasn't suffering from a recognizable disability.

Tjernagel had argued strenuously that Hughes' report wasn't submitted until after her termination, so the company couldn't have relied on it in making its termination decision. She claimed that she was actually disabled at that time and the case therefore should be evaluated on whether the company treated her differently as a result. The court was troubled by the sudden improvement in her physical condition that the last doctor's letter seemed to reflect, however.

With no evidence in the official record indicating how Tjernagel recovered so dramatically in the three months or so between her termination and the date of Hughes' report, the appeals judges ruled that the lower court judge could reasonably conclude that her earlier restrictions were either overstated or erroneous altogether. As a result, they agreed with the lower court that she wasn't substantially limited in performing any major life activities, wasn't disabled, and therefore couldn't sue the company for disability discrimination.

Tjernagel wasn't done yet. She claimed, as litigants often do in these cases, that even if she wasn't actually disabled, the company perceived her as disabled and she was therefore entitled to the same protections under the ADA. She argued that Gates obviously believed her to be disabled since it wanted its doctor to second-guess Hughes' restrictions and prevent her from working.

The judges found just the opposite, however, noting that the company wanted its doctor to consult with Hughes to ensure that it was safe to allow Tjernagel to continue working. After all, Hughes' was the one who stated that her condition was "permanent" and "progressive" and that Gates should find something else for her to do. Contrary to her assertion, the company actually was seeking to keep her on the job, not move her out of it.

In addition, the court explained that even if the company did perceive Tjernagel as disabled, it was justified in that assumption since her own doctor had reported that she couldn't work overtime. An employer's mandatory overtime requirement has been recognized in previous cases as an essential job function. Tjernagel's inability to meet that requirement took her out of the ADA's protection. Accordingly, the appeals court affirmed the dismissal of the case. Glena Tjernagel v. The Gates Corporation, d/b/a The Gates Rubber Company, Case No. No. 07-3101 (8th Cir., July 9, 2008).

Behind the curtain

This case is a great example of the mixed messages employers often receive from employees with medical conditions. While submitting a doctor's note with significant medical restrictions, the employee was telling her supervisor that she wasn't very limited. As the jeopardy to her job increased, her impairments seemed to diminish, only to reappear when she challenged the termination. It's easy to become confused about which restrictions must be honored, particularly when some employees seem to be able to submit revised doctor's notes at will.

Under various circumstances, you can get help through clarification from the employee's doctor, independent medical exams, and additional medical information, but you must overcome certain legal obstacles to do that. If you're faced with a shifting set of medical restrictions for an employee, seek competent legal counsel to guide you through the ADA maze.