The best answer is “In all likelihood.” A minor tear that can be repaired may not be a disability (it depends), but a severe injury, or one that is inoperable with residual limitations, probably is.
The best answer, again, is “Maybe yes, and maybe no.” The big point here is that you can’t count on being able to withdraw the offer.
A recent court decision provides helpful guidance (although a little painful for employers) on the expanded definition of “disability” under the ADA Amendments Act and how an employer should respond when a post-offer medical examination reveals a disability.
Cannon v. Jacobs Field Services
Jacobs, a construction company, faces a jury trial after it withdrew an offer of employment made to a field engineer who had a severe rotator cuff injury. According to a panel of the U.S. Court of Appeals for the Fifth Circuit, which reversed summary judgment for Jacobs, Plaintiff Michael Cannon did have an ADA-protected “disability” and it wasn’t clear enough whether he was qualified to perform the position, with or without a reasonable accommodation. The jury will have to decide that.
Mr. Cannon was offered a position as a field engineer for Jacobs at a mining site in Colorado. He passed his post-offer drug test, but during his medical examination he disclosed that he had the rotator cuff problem and said that he’d been taking a prescription pain medication that contained opiates. (He said he wasn’t taking the medications any more.)
The company doctor cleared him for employment on the condition that Mr. Cannon (1) not drive a company vehicle, (2) not lift, push, or pull more than 10 pounds, and (3) not work with his hands above shoulder level. However, a manager said that the job couldn’t be done with those restrictions, “as the job site was located ‘in the mountains with rough/rocky terrain’ and ‘spread over several miles.'”
Meanwhile, Mr. Cannon was told by a Human Resources representative that the reaching limitation was his only problem. After being referred to the company’s Occupational Health Department, Mr. Cannon was told that he needed to provide documentation showing that he could climb a ladder and whether he was still taking the prescription medication. Mr. Cannon provided the documentation within two days. Nonetheless, the company withdrew the job offer. Then Mr. Cannon filed an EEOC charge, and then he sued.
First, the company claimed that Mr. Cannon had no ADA protection at all because he was not disabled. The Court shot that argument down, noting that the ADA Amendments Act, which took effect in 2009, dramatically broadened the scope of “disability.” Even if for the sake of argument Mr. Cannon was not actually disabled, the Court said, he was “regarded as” disabled.
And a jury would have to decide whether Mr. Cannon was (1) still on his meds, and (2) if so, whether he was at a point where he could stop taking them. (The meds were apparently the reason that he could not drive.) There were also disputed facts about whether Mr. Cannon could safely use a ladder with his shoulder injury.
The Court admitted that it was a close call as to whether Mr. Cannon’s injury and treatment disqualified him from the field engineer job, but said,
The parties may have been able to get to the bottom of the ‘ladder climbing’ question if [the Company] had conducted a more thorough inquiry after learning about Cannon’s injury.
And one more slap to the company: “[L]ooking at the facts in Cannon’s favor, there is little argument to be made that [the Company] engaged in the interactive process the law requires. It rescinded the offer almost immediately after learning of Cannon’s impairment without further exploration of his impairment or even waiting for his responses to the questions posted by the Occupational Health Department.”
Which brings us to our last question of the day:
. . . AND ALSO OF INTEREST . . .
The Retailer is back! After a hiatus, this publication – with news and information of interest to employers in the retail industry – has returned and will be published on a quarterly basis. The Winter 2016 edition includes a feature article by Susan Bassford Wilson on employment investigations, as well as federal court litigation statistics, and much more.
Image Credit: Wikimedia Commons photo of rotator cuff from Gray’s Anatomy (1919), public domain.