Should employee with lifting restrictions have been allowed to perform job in different way?
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Friday, September 9, 2016

Should employee with lifting restrictions have been allowed to perform job in different way?

By Marjorie Johnson, J.D. A jury will decide whether Nestle violated the ADA when it rejected the proposed accommodation of an employee with lifting restrictions and eventually terminated him due to his inability to perform his merchandise-handling duties, a federal court in Michigan ruled in denying summary judgment against his claims in part. Triable issues existed as to whether lifting heavy units was an essential job function, whether it would be reasonable to accommodate him by allowing him to take products out of large boxes and transfer them through use of a cart, and whether allowing him to do so would pose an undue hardship. However, his bid for punitive damages was tossed (Hann v. Nestle USA, Inc., August 31, 2016, Hood, D.). The employee worked for Nestle Dreyer’s Ice Cream Company as a pre-sales representative (PSR), which entailed restocking ice cream and pizza merchandise at about 40 stores. His doctor placed him on lifting restrictions due to a heart defect that put him "at high risk of sudden death," and after a car accident attributed to "sudden cardiac arrest and sudden cardiac death." He was diagnosed with hypertophic obstructive cardiomyopathy (HCM), a rare incurable condition, and underwent two surgeries, necessitating months of leave. After Nestle informed him that his medical restrictions could preclude him from returning to his PSR position, he proposed that he be allowed to remove products from the large boxes, lift them onto a wheeled cart, and push them to the store display freezer in separate loads. After much back and forth, Nestle eventually determined that it could not provide this accommodation and terminated him since no other job was available. Essential functions. Triable issues existed as to the essential functions of the employee’s PSR job. Specifically, Nestle argued that he could not perform the essential functions of lifting, carrying, pushing and pulling the merchandise he handled and that PSRs also often moved heavy third-party merchandise. Additionally, it claimed that several of its individual items (certain yogurt units) that exceeded his weight restrictions could not be separated. The employee did not dispute that his weight restrictions precluded him from handling the merchandise in the manner he traditionally had, with the individual units packaged together in plastic sleeves or boxes. Rather, he argued that the essential function of his job was to get the product to the display case and that his proposed accommodation enabled him to do so in a manner that both he and his coworker had utilized in the past. He could remove the individual units from the sleeves and boxes (which were within his weight limits) and transport the merchandise on a cart in single units. Indeed, he claimed that he routinely already did so as not to bring a full case or box to the freezer during periods when sales of certain products were slow. He also claimed that he seldom had to move other products out of the way to access Nestle’s products and testified that he observed another PSR perform work in the same way. Finally, he claimed that he was never required to lift the yogurt units because they were delivered to the store by the driver who placed them in the store display case. Proposed accommodation reasonable? Nestle also failed to unequivocally establish that his proposed accommodation would be unduly burdensome. Though it claimed that the individual units might slip off the cart and be damaged or cause safety issues and/or the process would result in a lack of productivity, the employee claimed he and his coworker routinely cut open product and carried it to the floor safely. He also claimed he "never had a goal of 40 cases an hour." Direct threat? A jury would also decide whether Nestle had a reasonable belief that the employee posed a direct threat to himself, even with a reasonable accommodation. It argued the potential harm was imminent and apparent because his condition was incurable and would worsen with age; some of the merchandise he was required to handle exceeded his lifting restrictions (even if broken down); and the primary duty of a PSR was to lift "heavy" objects at a constant pace for long hours. But he countered that Nestle had no evidence that it did anything to satisfy the individual inquiry required by the ADA. Rather, it simply relied on communications and never requested or looked at medical records from his doctor and never conducted an independent medical exam. Additionally, his doctor’s restrictions lessened over time and, more importantly, if he were able to perform his duties by breaking items down into individual units, the restrictions would not be violated. Undue hardship questionable. Nestle also failed to undisputedly show that the employee’s proposed accommodation would cause it to suffer an economic loss or interfere with its operations. Both he and his coworker had allegedly broken down the items into lighter objects and because he was paid a salary, Nestle would not necessarily be affected if it took him longer to make deliveries. Notably, since he was not allowed to attempt his proposed accommodation, neither party could conclusively establish that he would or would not be able to complete his duties. Punitive damages. However, the court tossed his bid for punitive damages since there was no evidence that Nestle acted "with malice or reckless indifference" to his rights. Rather, it undisputedly considered his doctor’s restrictions in evaluating whether he could satisfy the demands of a PSR position and attempted to work with him for months to try to accommodate him, even suspending his termination to do so.

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