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Nice guys finish first

published in Oklahoma Employment Law Letter | March 1, 2013

On January 3, the 10th Circuit affirmed dismissal before trial in favor of an employer that terminated an employee because he could no longer perform the essential functions of his job. The court’s opinion reemphasizes what your obligations are (and aren’t) under the Americans with Disabilities Act (ADA), and it makes clear that an employer shouldn’t be penalized for providing a specific temporary accommodation.

Facts

Scott Wehrley worked as a field claim adjuster for American Family Mutual Insurance Company. In 2007, he fell off a ladder while conducting a roof inspection and injured his back and knee. While he returned to work fairly quickly, he had restrictions. At first, he was on crutches, so American Family assigned him to desk duty until he could walk. Later, he was assigned to claims that didn’t require getting on roofs or climbing ladders.

Approximately six months after the fall, the workers’ compensation doctor lifted all of Wehrley’s restrictions, and Wehrley requested an independent medical exam. The doctor who conducted the exam decided that Wehrley should avoid kneeling and crawling when possible but that some kneeling and crawling was OK. Based on the two doctors’ reports, American Family reassigned Wehrley to roof claims, but he quickly obtained ladder and roof restrictions from the doctor who performed the independent medical exam. American Family complied with the restrictions. Then, a few months later, the second doctor determined Wehrley needed knee surgery and gave him permanent work restrictions.

When Wehrley advised his supervisor that he was going to need knee surgery, his supervisor advised him to contact the company’s Family and Medical Leave Act (FMLA) coordinator. Wehrley ended up postponing the surgery when the workers’ comp insurer refused to cover it. A few days later, the supervisor asked Wehrley if he had applied for FMLA leave for the surgery. Wehrley told him he planned to but was going to wait until surgery was rescheduled.

Approximately three weeks after that, Wehrley’s supervisor told him that his job was at risk if he couldn’t perform roof claims because doing so is an important part of his job. A week later, Wehrley told his supervisor that he still hadn’t applied for FMLA leave or gotten the surgery rescheduled. The supervisor terminated his employment because he couldn’t perform roof inspections.

So can American Family do that?

Yep! American Family maintained a pretty good job description for Wehrley’s position. The description established that the essential functions of the job required the “ability to work in high, precarious places up to 33% of the time and to stoop, kneel, crouch or crawl up to 33% of the time” — things Wehrley’s doctor said he couldn’t do. Additionally, the evidence was clear that (1) 57% of the claims in Wehrley’s unit were roof-related and (2) the field claim adjuster position required adjusters to climb up and down ladders. As a result, Wehrley couldn’t perform the essential functions of the position, and his termination was supported.

Here’s the part of the decision I really like: Wehrley argued that the fact that American Family had allowed him to continue working without performing roof inspections for a year was evidence that roof inspections were not an essential function of the job. Nope, said the court. It rejected that argument, clarifying that an employee can’t use the fact that his employer temporarily accommodated him in a particular way as evidence that certain job duties aren’t essential. As the court pointed out, allowing that to be the standard would discourage employers from doing everything they can to voluntarily help an employee.

Wehrley also claimed American Family retaliated against him for seeking (1) accommodations under the ADA and (2) FMLA leave. Again, the court reiterated that American Family had accommodated Wehrley for more than a year, even though it had no obligation to do so. Further, the employer had verified that no desk jobs in Wehrley’s area of expertise were available in the office — even though he never requested that it do so. In other words, American Family went out of its way for this guy. Wehrley simply couldn’t show that the reason for terminating his employment was a pretext (i.e., a cover-up), so his ADA and FMLA retaliation claims failed. Wehrley v. American Family Mutual Insurance Company.

Takeaway

First, your job descriptions can really help when you’re faced with ADA claims. Make sure they are accurate and descriptive — they were the saving grace in this case. Second, you are not required to do away with an essential function of a job indefinitely. That doesn’t mean that temporarily relieving an employee of an essential function of his position isn’t “reasonable” under the ADA, but excusing him long-term isn’t required. Think about how nice the employer in this case came across — American Family went out of its way to help Wehrley keep his job. That’s always going to land in your favor.