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If an employee’s physician writes that the employee cannot work due to a “permanent disability,” this would seem to be a sufficient basis for the employer to remove the employee from the workplace. In the recent case of Wishkin v. Potter, the 3rd U.S. Circuit Court of Appeals held that such a representation would not necessarily be enough to prompt the employer’s action. Richard Wishkin is a mentally disabled man who began his employment with the U.S. Postal Service in 1969. In 1983, he suffered a work-related injury that resulted in him being limited to a 20-pound lifting restriction. In 1998, there were rumors that Wishkin’s unit would be closed. Wishkin became concerned that he would be unemployed if this occurred. As such, Wishkin requested that his urologist write a letter to his supervisor recommending that he be considered for permanent disability, ostensibly because of his health problems and limitations. Wishkin’s doctor reluctantly agreed, despite the fact that Wishkin’s ability to work was unchanged. After Wishkin delivered the letter to his supervisor, he was sent for a fitness-for-duty examination. The examination lasted more than two hours and, at the conclusion, Wishkin was advised that he was “fit for duty.” He claimed that when the “fit for duty” report was delivered to his supervisor, she became irate and called the examining doctor to advise that Wishkin’s own physician had declared him eligible for permanent disability. The examining physician then changed his evaluation from “fit for duty” to “unfit for duty” a few minutes later. The supervisor then accompanied Wishkin to process his disability retirement paperwork, which he refused to complete. The supervisor then told Wishkin that he was not to return to his place of employment, but because he did not complete the appropriate paperwork, he received no disability benefits. Almost a year later, when Wishkin’s health benefits were scheduled to expire, he submitted another physician’s assessment that he could return to his employment with his previous restrictions – which he did until a heart condition forced his retirement four years later. After Wishkin’s retirement, he brought suit against the Postal Service, claiming that he was discriminatorily placed on leave in violation of the Rehabilitation Act. The district court granted summary judgment in favor of the Postal Service on the grounds that the Wishkin’s physician’s letter that he should be considered for “permanent disability” was the basis for his employer’s finding that he was “unfit for duty.” This finding meant that he was not “otherwise qualified” to perform the essential functions of his job. Wishkin, therefore, could not create a prima facie case of disability discrimination. Wishkin appealed, claiming that the district court had ignored evidence that could create an issue of fact as to the Postal Service’s finding that he was “unfit for duty.” The appellate court began its analysis by recognizing that the traditional burden-shifting paradigm was applicable to cases under the Rehabilitation Act, just as it was other discrimination claims. It then found that Wishkin’s mental disability clearly qualified him for coverage under the Rehabilitation Act as a “substantial limitation of a major life activity.” The 3rd Circuit found, however, that the record contained evidence that Wishkin’s supervisor had pressured him (and possibly other mentally disabled co-workers) into seeking substantiation for a “disability retirement” by telling them that their jobs would soon be eliminated and that such a retirement was the only way to “save himself.” The court noted that a number of Wishkin’s disabled co-workers were given fitness-for-duty examinations on the same day, and that a large percentage of the co-workers took disability retirements in the same time frame. The court continued: “The unusual circumstances surrounding the fitness for duty examinations of the all the disabled employees and the consistent and routine warnings given to the disabled employees regarding their job status could support Wishkin’s contention that [his disability leave] was motivated by discrimination.” The court held that if the letter from Wishkin’s physician was obtained under duress, it could not form the basis for a legitimate conclusion that he was not qualified for his position. While clearly an employee cannot be pressured into declaring himself “disabled,” the decision may have the effect of requiring employers to confirm an employee’s own representations of disability before acting on them. In this case, while there was agreement that Wishkin sought the “permanent disability” letter to avoid layoff if his position was eliminated, the evidence was that Wishkin’s unit was, in fact, closed approximately two years later. The decision contains no discussion of whether Wishkin’s supervisor genuinely believed that the unit would be closing. Moreover, while the court noted that there had been no significant change in Wishkin’s physical abilities at the time he sought “permanent disability” classification, the fundamental point remains that Wishkin sought the classification out of his own self-interest. Under those circumstances, it would be difficult for an employer to assess the employee’s motivation for presenting evidence of his permanent disability. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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