Labor & Employment Law Daily Nurse required to work more than 12 hours despite restriction can take ADA claims to trial
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Friday, December 6, 2019

Nurse required to work more than 12 hours despite restriction can take ADA claims to trial

By Kathleen Kapusta, J.D.

In holding that a nurse with a 12-hour work restriction failed to show she was substantially limited in performing any major life activities, the district court “viewed this case through the wrong lens and relied on outdated authority.”

Reversing summary judgment against the ADA failure-to-accommodate claim of a licensed practical nurse who alleged she was under a 12-hour work restriction due to physically disabling back issues, the Eighth Circuit cited evidence that her employer had a blanket policy of denying accommodations for all nonwork-related disabilities, knew she had requested an accommodation of working eight-hour shifts, forced her to work beyond her restriction, and attempted to do so again five days later. Further, in light of her employer’s repeated failure to honor her accommodation requests, a reasonable person in her position would have felt compelled to resign, said the court, reversing summary judgment against her disability discrimination claim as well. Her retaliation claim was also revived (Morrissey v. Laurel Health Care Co., December 3, 2019, Donald, B.).

Work restriction. Around 11 years after she began working for the skilled nursing and rehabilitation center, the employee provided her employer with notes from her doctor and a nurse practitioner stating that she could not work for more than 12 hours. The last note from the nurse practitioner, in February 2012, noted that the employee was only restricted until her next office visit. Although the employee claimed the absence of another note meant she remained under the work restriction, her employer argued that it meant the opposite.

Surgery. That same month, the employer announced that it would not provide accommodations for any medical condition that did not stem from a work-related injury. In July 2015, the employee took FMLA leave to undergo carpal tunnel surgery. When she was ready to return, she claimed her employer told her it did not allow staff to work with medical restrictions. In response, she explained that she did not have a restriction based on the surgery but still had the 12-hour work restriction. She claimed she was told her previous accommodation might not be honored. After she submitted a note from her hand surgeon stating that she did not have any medical restrictions—the final medical note in her personnel file—she returned to work.

Accommodation request. Around this same time, the employer considered transitioning its nurses to 12-hour shifts, prompting the employee to ask if she could be transferred to a unit that was not going to be transitioned or go to “casual status,” which would have allowed her to avoid being mandated to work longer than 12 hours. She claimed she was told she could not transfer and that casual status was being phased out. Not long after, she was transitioned to 12-hour shifts.

Although from July 2012 through January 30, 2016, she worked more than 12 hours on eight occasions, it was only for an additional 15 minutes each time. On January 31, however, she was mandated to work a 13.5-hour shift (nurses were mandated to work more than 12 hours when the next shift was not fully staffed). Although she purportedly told her manager of her work restriction, her manager claimed to be unaware of it and said she had no control over the situation. The next day, the employee allegedly spoke with the Michigan EEOC and left a message with a corporate officer. Five days later, she was again required to work 16 hours even though it was not her turn to be mandated. When her manager again refused to do anything, the employee left and never returned.

Lower court proceedings. She subsequently sued under the ADA and the district court, granting summary judgment against her claims, found she failed to establish she was disabled, that she suffered an adverse employment action, that her employer failed to accommodate her, or that it retaliated against her.

Disabled? On appeal, the court first rejected the employer’s contention that pre-2008 cases were still good law in determining whether an employee is disabled. In finding that the employee was not disabled, the district court “viewed this case through the wrong lens and relied on outdated authority,” said the appeals court. The court below found the employee failed to establish she was substantially limited in performing any major life activities because there was a dearth of medical evidence confirming her purported diagnoses, she never told her employer about her specific diagnoses, and a restriction on work hours alone was insufficient to establish the existence of a disability. However, it failed to address many of the employee’s factual arguments or the 2008 Amendments to the ADA, said the appeals court, noting that from her complaint onward, she asserted that she was disabled because she was substantially limited in her ability to walk, stand, bend, and lift repetitively due to Scoliosis, bulging disc, Ehlers-Danlos syndrome, and Buschkes-Ollendorf syndrome.

She never argued she was disabled because of an inability to work, the appeals court explained, nor was that necessary to her claim. Nor did she have to tell her employer about her specific diagnoses; it was enough that she said she could not work more than 12 hours per shift because she suffered from a disability as defined by the ADA. Moreover, her medical records established that she suffered from disc disease.

Framed correctly, said the court, the question was whether she sufficiently established that she was limited in her ability to walk, stand, lift, or bend and here, there was evidence she was constantly in pain, she had difficulty walking after eight-hour shifts, she had so much trouble bending over, it was difficult to put on clothes, and she could not complete household chores that required lifting, bending, or stooping after working. This was enough to satisfy her burden of showing she was disabled.

Failure to accommodate. And while the district court found her “evidence from over the course of four years reveals one, isolated 13.5 hour shift and eight de minimis overages,” the evidence showed her employer had a blanket policy of denying accommodations for all nonwork related disabilities; it knew she was under a 12-hour work restriction; she requested an accommodation; it forced her to work beyond that restriction on January 31; and it attempted to do so again five days later. She asked for an accommodation and her employer did not accommodate her, observed the appeals court, and “she was not required to establish anything more for her claim to ripen,” Thus, this claim could proceed to trial.

Constructive discharge. As to the employee’s constructive discharge claim, even though she informed her employer numerous times of her restriction over a period of four years, it mandated her to work 13.5 hours on January 31; when she complained, her manager told her she had no control over the situation; five days later, she was again mandated to work 16 hours and was again told by her manager there was nothing she could do. Because a reasonable juror could conclude she was constructively discharged, the court found her disability discrimination claim could also proceed to trial.

Nor could the employer escape liability by arguing that its blanket policy of denying accommodations for all nonwork-related disabilities was ostensibly neutral, said the court, observing that it could not refuse to provide the employee with a reasonable accommodation and then conclude that she was not qualified for her position because she could not meet her job’s requirements without an accommodation.

Retaliation. Finally, in reviving her retaliation claim, the court again noted that the record supported a finding that she was constructively discharged. In addition, her repeated requests for accommodation of her 12-hour work restriction, assuming it was still in effect, constituted protected activity. Further, the evidence could be interpreted to show that because of her restriction, she was mandated to work more than 12 hours five days after she had already been required to do so, which lead to her constructive discharge.

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