Practice Areas

Seventh Circuit Addresses "Ability to Work" Under ADA

August 2013

By: Alan E. Seneczko

The complex relationship between medical conditions, the ability to work and an employer's obligations under the Americans with Disabilities Act and Family Medical Leave Act is probably one of the most difficult problems that employers face on a regular basis. In two recent decisions, the Seventh Circuit added a little more clarity to the issue.

Basden v. Professional Transportation, Inc., Case No. 11-2880 (7 th Cir. 2013), involved a woman experiencing symptoms from suspected multiple sclerosis, which caused her to miss work on a number of occasions, each resulting in discipline as she progressed her way through her employer's attendance policy. While on suspension (the final step before discharge), she requested a 30-day medical leave for "complications due to medical illness (MS)." The employer denied her request because she had not yet worked a year (a condition of the leave) and then terminated her under the attendance policy when she failed to return to work after her suspension - an act the employee claimed violated the ADA.

The court noted, "an employer is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance." Thus, "an employee whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a 'qualified individual' for ADA purposes." The court then dismissed the claim, finding that, at the time of the employee's termination, there was no evidence which demonstrated that she could come to work regularly, or that regular attendance could have been expected following her leave and/or with another form of accommodation.

In Majors v. General Electric, 714 F.3d 527 (7 th Cir. 2013), an employee with a permanent 20 lb. lifting restriction requested that another employee be assigned to perform the lifting required in the job she sought - lifting that was considered an essential function of the position. The employer refused and the employee sued. The court rejected her claim, finding, as a matter of law: "To have another employee perform a position's essential function, and, to a certain extent perform the job for the employee, is not a reasonable accommodation."

When dealing with employee medical conditions, employer's often become so focused on "potential liability" and the ominous "duty to accommodate," that they often overlook another critical, threshold requirement - the employee must be able to perform the job! These cases serve as a good reminder of this very important, and relevant consideration.

For more information about, and answers to these difficult questions, please contact WS Attorney Alan E. Seneczko at (262) 560-9696 or email  alseneczko@wesselssherman.com .