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Like a baseball player seeing a fast ball right down the middle, the 3rd U.S. Circuit Court of Appeals once again had the question of whether an employee who is “regarded as” disabled under the ADA is entitled to a reasonable accommodation right over the heart of the plate. And once again, the court allowed the pitch (or the issue) to pass without taking a swing. In Buskirk v. Apollo Metals, No. 01-3556 (3d Cir. Sept. 20, 2002), the 3rd Circuit again declined to address the question of reasonable accommodation for employees who are “regarded as” disabled for the third time. While this may frustrate those (including myself) who believe the answer to this question is clear, the Buskirk court provided other guidance that practitioners and employers will find useful. WORK HISTORY Willard Buskirk was hired by Apollo Metals in 1981 and worked at a variety of jobs throughout his employment. He injured his back in February 1996 after he slipped on the ice in Apollo Metal’s parking lot. After taking off for two days, Buskirk returned to a series of light duty positions until he was advised by his doctor to stop working in June 1996. Buskirk was then out of work for approximately three months until he again returned to a series of light duty positions. In November 1996, Buskirk’s doctors concluded that he would be permanently unable to return to his pre-injury position as a box-maker because of his injury. Nevertheless, Apollo Metals allowed Buskirk to continue on light duty through May 1997. In a letter to Buskirk dated May 30, 1997, Apollo Metal terminated his employment stating: “you are not presently able and are not expected to be able to perform your former position, with or without reasonable accommodation. … ” Apollo Metals stated that the light duty work being performed was ‘not of a permanent nature and we can no longer offer that employment to you.” Buskirk’s union filed a grievance on his behalf and, as a result, Apollo Metal’s changed his status so that he would no longer be considered terminated, but rather would be considered on a leave of absence, which allowed him to accrue workers’ compensation benefits. This turned out to be critical, because Buskirk’s physical condition began to improve to the point that he was released to return to “permanent” work with a 40-pound lifting restriction in December 1998. Apollo Metals placed Buskirk in the first available position consistent with his permanent lifting restriction and he remains employed to date. ADA CLAIM Buskirk sued Apollo Metals for lost wages from May 1997 to his reinstatement. Buskirk covered the gamut of ADA claims, by claiming that he was actually disabled, had a record of impairment and was regarded as being disabled. Apollo Metals moved for summary judgment and the District Court granted this motion with respect to the first two ADA claims. The “regarded as” claim went to trial and, after Buskirk presented his case, the court granted Apollo Metals’ motion for judgment as a matter of law. The court found squarely that the company’s actions had not violated the ADA because an employer is not obligated to provide reasonable accommodations to an employee who is only regarded as disabled. The court also found that, even if Apollo Metals was required to accommodate Buskirk, it had done so. Buskirk then appealed. Buskirk claimed that he was “regarded as” disabled based upon the EEOC’s regulation defining the “regarded as” prong as having a “physical or mental impairment that does not substantially limit major activities but is treated by a covered entity as constituting such limitation.” 29 C.F.R. Section 1630.2(l) (2001). Buskirk conceded that his injury did not qualify him to be “actually” disabled, but he claimed that Apollo Metals regarded his impairment as one that prohibited him from performing a wide range of jobs. The principle evidence that Apollo Metals misperceived Buskirk’s limitations was a letter from the company to Buskirk’s union in July 1997 (two months after his termination/reinstatement) that “there still exists a concern about his ability to perform any of the job classifications,” even after receiving a doctor’s note that he could work with certain restrictions. QUALIFIED INDIVIDUAL? The question of whether Apollo Metals was required to provide Buskirk with a reasonable accommodation arose in the court’s consideration as to whether he was a “qualified individual” under the act. That is, someone who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The court found, however, that it was not necessary to determine whether Apollo Metals was obligated to provide Buskirk with a reasonable accommodation, as, whether it was obligated to or not, it had done so. While the court reserved the question for another case, it acknowledged the “considerable force” of the argument that “mandating reasonable accommodations would both permit healthy employees to demand changes in their working conditions through the threat of litigation and create a windfall for legitimate ‘regarded as’ disabled employees who, after disabusing their employers of their misperceptions, would nonetheless be entitled to accommodations that their similarly situated co-workers are not, for admittedly none-disabling conditions.” citing Deane v. Pocono Medical Center, 142 F.3d 138, 149 n.12 (3d Cir. 1998 en banc). The court also noted that the 5th, 6th and 8th circuits have held that “regarded as” employees are not entitled to reasonable accommodations. The court continued to cite the 1st Circuit opinion, Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996), for the proposition that “regarded as” employees are entitled to reasonable accommodations. In the Katz decision, however, the 1st Circuit found that “it may well be that Katz was both actually disabled and perceived to be so.” As such, its finding that an accommodation was required does not squarely address the issue presented. With respect to the accommodation that Apollo Metals did provide, Buskirk argued that it was roughly 18 months too late. The court found, however, that prior to Buskirk’s release to “permanent work” in December 1998, “none of the doctors’ notes written … stated that he could perform full-time, permanent work.” While Buskirk argued that some of his pre-December 1998 evaluations should have allowed for his return, the court disagreed. The court observed that “arguably, the evidence shows that Buskirk did not demonstrate that he could have performed the essential functions of any job, with or without accommodation. It was unnecessary to address this point, however, because of the parties’ focus upon whether an accommodation had been provided.” Further, the court noted the possibility that this case raised an issue under the U.S. Supreme Court’s recent decision in Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002) in that an individual “shall not pose a direct threat to the health or safety of the individual or others in the workplace.” This note implies, but does not specifically state, that the threat that Buskirk may have injured himself at work could have allowed Apollo Metals to keep him out of the workplace. While Apollo Metals ultimately accommodated Buskirk by providing him with a less strenuous position in the workplace, it did so only after receiving a medical evaluation that he was capable of returning to “permanent work.” This raises the question of whether an employer is entitled to require that an employee be able to return to the workplace without the possibility that he may need additional leave. Interestingly, this comes close to “full duty or no duty” requirements that have long been prohibited by courts under the ADA. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, www.postschell.com. He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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