Professional Service Agreement

Week In Review

April 18, 2016

Indefinite Extension of Light-Duty Not Required Under ADA
Employers evaluating reasonable accommodation requests often must decide whether they have to provide extended light duty for an injured employee. A federal appellate court has held that an indefinite extension of light-duty status was an unreasonable accommodation as a matter of law. The employee was injured in July 2010 at work when a heavy metal door closed on her right arm. Unable to perform her regular duties, the employee was placed on light-duty status. The employee obtained opinions from multiple doctors, but because of nerve damage and pain she was unable to return to her normal duties even years later. The employer terminated the employee after finding the medical documentation supplied by the employee established that she could not perform the essential duties of her job and it was unknown when, if ever, she could return to full-duty status. After her termination, the employee sued for disability discrimination and also for retaliation.

The Americans with Disabilities Act (ADA) prohibits discrimination against a “qualified individual on the basis of disability.” In addition to this general nondiscrimination bar, the ADA also requires employers to make “reasonable accommodations” to an otherwise qualified individual unless doing so would impose an “undue hardship” on the employer. An accommodation is reasonable if it allows the disabled employee to perform the essential functions of the job.

The parties agreed that the employee was disabled and not qualified for her job without some form of accommodation. As such, the only issue in the case was whether the employer discriminated against the employee by failing to provide a reasonable accommodation that would have enabled her to perform the essential duties of her job or another position for which she was qualified. The employee proposed two accommodations: (1) an indefinite extension of her light-duty status; or (2) reassignment to another position.

In dismissing the case, Court held that neither proposal was reasonable. Because of her medical situation, the employee did not know and did not suggest a time frame for when she would be able to resume her full-duty position. The Court found such an indefinite extension was unreasonable as a matter of law as the ADA is intended to cover people who perform the essential functions of their jobs “presently or in the immediate future.” The employer did not have any permanent light-duty positions and was not required under the ADA to create one. Reiterating previous ADA holdings, the Court noted that a qualified, disabled individual is not entitled to the accommodation of her choice, but only to a reasonable accommodation. The employee’s request for reassignment was likewise unreasonable as the employer did not have any full-duty vacant positions for which the employee was qualified or could perform in light of her medical condition. She never requested reassignment or applied to a specific position or demonstrated that she could perform the essential duties of another position.

NLRB Strikes Again
On April 7, 2016, the National Labor Relations Board (“NLRB”) ruled that five Dan Gilbert companies, including Quicken Loans Inc., Fathead LLC, In-House Realty LLC, One Reverse Mortgage LLC, Rock Connections LLC and Title Source Inc. (the “Companies”), promulgated rules in an employee manual called “The Big Book” that workers could reasonably interpret as interfering with their rights under Section 7 of the National Labor Relations Act (“NLRA” or “Act”). The NLRB case stems from a complaint by a former employee who claims he was fired in retaliation for exploring whether to start a union. The NLRB determined that many of the rules included in the Big Book violated the NLRA because they were written so broadly that it would have been reasonable for employees to conclude that the Companies were barring their rights under the Act to debate and communicate with each other about the terms and conditions of their workplace.

The Big Book advised employees in part:
“If it doesn’t belong on the front page of the New York Times, don’t put it online… Something wrong at QL? Don’t take it online. Resolve work-related concerns by speaking directly with your Team Leader or Team Relations Specialist… The Company’s buildings, offices, common areas, facilities, parking lots, automobiles, data centers, mail rooms and the like, whether leased or own, are to be used only for conducting Company business and transactions, and for no other purpose. You may not conduct any other for-profit or charitable business enterprise, transaction, fundraising, or other venture from within or using the Company’s Facilities.”

SESCO recommends that clients review all applicable policy and practices to ensure compliance. For assistance, contact us at 423-764-4127 or by email at