Failure to Accommodate When Doing a Fitness for Duty Exam May Cost You Big Time

I am taking a break from watching the Olympics on Peacock and other channels. Hoping everyone has a good end to the summer. At least in my town, K-12 starts for the kids tomorrow.

 

Today’s blog entry deals with the question of what happens when you have a fitness for duty exam that doesn’t properly evaluate what it is supposed to evaluate. Further, what happens if the person that is being evaluated suggests a another way to be evaluated and the employer turns it down. The answer is the employer gets hit with a $1,023,424.34 verdict. This is exactly what happened in Sanders v. Union Pacific Railroad Company, here, decided by the Ninth Circuit on July 25, 2024. As usual, our blog entry is divided into categories and they are: facts; court’s reasoning that Sanders did not waive arguments regarding cardiovascular concerns or knee problems because his complaint specifically identified only his ulcer; court’s reasoning that the jury could have reasonably concluded that by imposing work restrictions, Union Pacific discriminated against a qualified individual on the basis of disability; direct threat defense does not apply; the jury had sufficient evidence to conclude that Sanders proved his failure to accommodate claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Allan Sanders worked for Union Pacific as a foreman general. This position required Sanders to oversee mechanics for Union Pacific’s trains, known as carmen, and to assume their responsibilities if none of them were available to respond to a distressed train. Some of the carmen’s responsibilities require significant physical exertion. One such responsibility is replacing knuckles—part of the equipment that links the cars of a train together—that weigh approximately 86 pounds each.

 

This physical component of Sanders’s job became a problem only when he suffered complications relating to a bleeding ulcer. One of those complications was a brief cardiac arrest. Sanders was resuscitated, underwent a successful operation, and fully recovered. Before Sanders could resume his duties, Union Pacific required him to undergo a fitness-for-duty evaluation. Dr. Charbonneau, an associate medical director for Union Pacific, oversaw the evaluation.

 

Union Pacific required Sanders to perform a “Bruce protocol” test—that is, a test where Sanders had to walk quickly or jog on a treadmill—to demonstrate his aerobic capacity. Sanders stopped this test early because of “fatigue.” He explained to Union Pacific that his fatigue was due to pain in his knees caused by osteoarthritis rather than any issue with his heart. Sanders requested that Union Pacific allow him to perform an alternate test on a bicycle because the bike would put less strain on his knees. Union Pacific told him that it would not accept the results of a bicycle test. Based on the results of the treadmill test, Dr. Charbonneau concluded that Sanders had low aerobic capacity and would be unable to perform strenuous labor. He thus imposed work restrictions that prevented Sanders from returning to work as a foreman general. Sanders sued Union Pacific and alleged discrimination under the ADA. A jury returned a verdict for Sanders and awarded damages of $1,023,424.34.

 

 

II

Court’s Reasoning That Sanders Did Not Waive Arguments regarding Cardiovascular Concerns or Knee Problems Because It Complaint Specifically Identified Only His Ulcer

 

1. The Federal Rules of Civil Procedure provide that when an issue is not raised by the pleadings but is tried by the parties express or implied consent, it gets treated as if it was raised in the pleadings.
2. Sanders raised his knee problems and possible cardiovascular limitation before trial, and Union Pacific was afforded sufficient notice of those claims. In fact, Union Pacific litigated the merits of those impairments in a motion for summary judgment and addressed those conditions in its proposed jury instructions. The jury instruction even included those conditions. Further, Union Pacific did not object to the evidence received at trial regarding those impairments.

 

III

Court’s Reasoning That The Jury Could Have Reasonably Concluded That By Imposing Work Restrictions, The Company Discriminated Against A Qualified Individual On The Basis Of Disability

 

1. To establish a claim of disparate treatment, Sanders had to show: 1) he was disabled; 2) he was qualified; and 3) the employer imposed work limitations because of his disability.
2. Charbonneau required the treadmill test and then refused to allow Sanders to return to work because of his concern that Sanders’s heart was impaired. Such evidence is sufficient for a jury to believe that Union Pacific perceived Sanders as having a heart impairment and restricted him from work on that basis.
3. With the amendments to the ADA, the definition of disability must be construed in favor of broad coverage of persons with disabilities. Also, the amendments expanded the scope of “regarded as,” claims by providing no basis to limit the prohibition for discrimination based on archaic attitudes, erroneous perceptions, and myths.
4. An employee is qualified if he can perform the essential functions of a job with or without reasonable accommodations. Here, the jury heard considerable evidence that Sanders could lift knuckles and perform other strenuous activities without accommodations. Doctors also cleared him for work without lifting limitations. The applicable job description states that he would lift knuckles only rarely and with assistance. Sanders also testified that he regularly performed activities more strenuous than his work for Union Pacific. Finally, no test reliably showed that Sanders could not lift 86 pounds. Accordingly, a reasonable jury could conclude that Sanders was qualified to perform the essential functions of his job.
5. The jury reasonably found that Union Pacific acted because of Sanders disability. The evidence showed that Union Pacific stopped Sanders from working as a foreman general because it believed he had diminished cardiovascular health, which is a physical impairment under the ADA.
6. The ADA does not require evidence of prejudice towards persons with disabilities. All the ADA requires is that the employer was motivated by the employee’s disability. Sanders can show that because the defendant acknowledged relying on the plaintiff’s impairment in reaching the employment decision.

 

IV

Direct Threat Defense Doesn’t Fly

 

1. To establish a direct threat Defense, Union Pacific had to show that its determination that Sanders was a direct threat was: 1) the result of an individualized assessment; 2) objectively reasonable; and 3) based on the most current medical knowledge and/or on the best available objective evidence.
2. Union Pacific failed to prove that the test was objectively reasonable and that the determination was based upon the most current medical knowledge and/or on the best available medical evidence for several reasons. First, Sanders’s medical expert testified that Union Pacific should have allowed Sanders to undergo a test on a bicycle in light of his knee condition and medication regimen. As such, the test that he did undergo rendered the results inaccurate. Further, the expert testified that Union Pacific’s decision to limit Sanders was completely uncalled for, completely wrong, and not based on any medical principles at all. Accordingly, a reasonable jury could have accepted this testimony and concluded the company failed to prove its decision was objectively reasonable and based on the best available objective evidence.

 

V

The Jury Had Sufficient Evidence to Conclude That Sanders Proved His Failure to Accommodate Claim

 

1. In order to prove a failure to accommodate, Sanders had to show: 1) Union Pacific knew of his disability; 2) Sanders requested an accommodation; 3) Union Pacific failed to engage in an interactive process with Sanders about possible accommodation; and 4) Sanders’s disability could have been reasonably accommodated if the interactive process had taken place.
2. Sanders testified that he had arthritis in his knees that limited his ability to walk quickly enough on the treadmill to demonstrate accurately his aerobic capacity. As such, the jury had sufficient evidence to conclude that Sanders is a person with a disability.
3. There was ample evidence that Union Pacific knew of Sanders’s knee problems: 1) Union Pacific had his medical records; 2) Sanders told Union Pacific employee that he was concerned about his knees before taking the treadmill test; and 3) Sanders told Dr. Charbonneau later that his knees limited his performance on the treadmill test.
4. The evidence also supports a finding that Sanders requested an accommodation when he asked whether he could take the test on a bicycle rather than on a treadmill. Once that request was made, Union Pacific was required to engage in an interactive process designed to identify the limitations caused by his disability and to discover potential reasonable accommodation to overcome those limitations. An employer hinders that interactive process when it does not in good faith assist the employee in seeking accommodations and the employee could have been reasonably accommodated but for the lack of the employer’s good faith.
5. Union Pacific did not assist Sanders in identifying a suitable accommodation for his impaired knees when he informed him that only results from a treadmill test would be acceptable. That directive eliminated the possibility of an accommodation. The record also included evidence showing that the company could have reasonably accommodated Sanders. Three different physicians testified that a bicycle test is a medically appropriate alternative to the treadmill test for someone with impaired knees.
6. Sanders stopped the treadmill test only because of his impaired knees. His doctors also cleared him for work without restriction. Finally, evidence existed that Sanders regularly performs physical activities, such as ranching, that were as strenuous as his work as a foreman general (his job at Union Pacific). Therefore, a reasonable jury could have concluded that Sanders would have performed well enough on the bicycle test to return to work.

VI

Thoughts/Takeaways

 

1. Fitness for duty exams need to be narrowly focused on what is being evaluated and should not be fishing expeditions.
2. If a person asks for another way to accomplish such a narrowly focused tests, the entity must consider that.
3. The ADA extends beyond just employment. It also includes accessing nonfederal governmental entities and accessing places of public accommodations. While the employment provisions have very specific regulatory provisions when it comes to disability related inquiries and medical exams, the DOJ in their Technical Assistance Memorandum for both Title II and Title III have made it clear that unnecessary medical inquiries are also prohibited by Title II and Title III of the ADA. Also, remember, as we discussed here for example, the ADA is a nondelegable duty.
4. Direct threat defense is a high bar to meet and it requires, as we have discussed many times before, such as here, an individualized assessment with a decision that is objectively reasonable and based upon the most current medical knowledge and/or on the best available objective evidence.
5. The ADA doesn’t require evidence of prejudice towards persons with disabilities.
6. Don’t forget that there are three entirely separate ways to establish a disability under the ADA: actual; record of; and regarded as. You only need one of the three. This particular case involves both the actual and regarded as prongs.
7. Magic words are not required to activate the interactive process. Failure to engage in an interactive process never turns out well for the employer.
8. An evaluator of a fitness for duty exam should know what the essential functions of the job are and should also be considering whether the exam being performed assesses that essential function and whether that exam is getting accurate information. If not, a different exam or way of doing the exam should be explored. See this article for what evaluators need to be thinking about with respect to their responsibilities under the ADA.
9. The decision seems to be unpublished.
10. The statutory damage caps have not been amended since the ADA was signed. So, the damages get reduced. That said, attorney fees are certainly in play. Union Pacific will have to pay plaintiff’s attorney fees and those fees are likely to be quite substantial. Legislation has been introduced to amend the statutory damage caps and there is some support in both parties. Hard to believe there would be any movement on that legislation until the results of the November election are known. If VP Harris should win, you would think revisiting the statutory damage caps would be something that she would want to do.