Labor & Employment Law Daily Utility made good faith attempt to accommodate disabled worker’s inability to wear certified safety boots
Monday, September 10, 2018

Utility made good faith attempt to accommodate disabled worker’s inability to wear certified safety boots

By Marjorie Johnson, J.D.

Though a utility company ultimately refused to allow an exception to its policy of requiring certain employees to wear certified steel-toe boots for safety reasons, it interacted in good faith in attempting to accommodate a journeyman lineman’s foot disability, the Eighth Circuit ruled, affirming dismissal of his federal and state failure-to-accommodate claims on summary judgment. It was undisputed that the company met with him twice about his request for accommodation, offered to help him with the process of applying for a different job with the company, and attempted to work with an orthotics company to obtain a certified boot that would allow him to work (Sharbono v. Northern States Power Co., September 6, 2018, Colloton, S.).

Foot disability. In 1991, the employee suffered an electric shock at work that resulted in the amputation of several toes and surgical reconstruction of his left foot. He later returned to work as a journeyman lineman but was medically restricted from wearing steel-toed boots. He started working for Northern States Power Company as a full-time journeyman lineman in 1997; his medical restrictions were not an issue since its policy requiring certain employees to wear “safety-toe footwear” that met the requirements of the American National Standards Institute allowed an exception for medically documented restrictions.

No medical exception under new policy. This policy changed in 2008, however, when Northern stopped allowing exceptions and required that all safety footwear be marked with a stamp that showed compliance with an international performance standard for safety footwear known as ASTM F2413. The employee attempted to comply by obtaining modified boots, but because they were not certified as compliant with the ASTM standard, Northern did not allow him to wear them. Once he began to wear compliant boots, he experienced discomfort in his left foot, which continued over the next several years.

Requests exception as accommodation. By 2011, he was increasingly using his sick leave and eventually began taking intermittent FMLA leave. In April 2012, asked for an accommodation and submitted a doctor’s note restricting him from wearing the steel-toed boot. Though his union also intervened on his behalf, Northern denied his request in August, stating in a letter that it “cannot eliminate the potential foot hazards that are present in the daily work of a lineman” and that “granting this waiver would be a violation of Company policy and a violation of OSHA.”

Offered other alternatives. In a meeting in October, management offered to help him find another job within the company and advised that he was also eligible for disability retirement benefits under the union contract. He decided to apply for the benefits and was sent for a medical evaluation. After the evaluation doctor suggested that he could obtain a compliant boot from an orthotics company, Northern consulted with an orthotics company, which ultimately advised Northern that while a custom boot could be manufactured, it could not be stamped with the ASTM stamp. Northern then placed the employee in a retired status with disability retirement benefits.

The employee filed this lawsuit alleging several violations of the ADA and the Minnesota Human Rights Act (MHRA). The district court granted summary judgment in favor of Northern on all claims. The employee appealed only his failure-to-accommodate claims, in which he argued that Northern failed to make a good faith effort to assist him in seeking accommodations.

Timing of response reasonable. The Eighth Circuit rejected the employee’s contention that Northern engaged in “inexcusable delay” in responding to his accommodation request: The record showed that Northern responded within four months and that he was paid during the interim while using sick leave. Thus, the timing of Northern’s response was insufficient to support a finding that the company did not act in good faith.

Didn’t abandon process. The employee also failed to show that Northern prematurely abandoned the interactive process. In particular, he argued that after the orthotics company stated that it could not produce a boot that qualified for the ASTM stamp, Northern failed to pursue more options to find a conforming boot. However, once Northern was informed by an industry expert that it could not produce a boot that met its needs and qualified for the ASTM stamp, it was reasonable for it to discontinue its efforts.

Reliance on regulations. Finally, the employee contended that Northern erroneously claimed that federal regulations required stamped boots and that its reliance on the regulation showed its lack of good faith. The Eighth Circuit acknowledged that the regulation seemed to permit footwear if an “employer demonstrates” that the footwear “is at least as effective as protective footwear that is constructed in accordance with one of” several industry safety standards. But the employee never disputed the company’s interpretation of the regulation during the interactive process. Moreover, the company made good faith efforts to secure a boot that met the performance standards for safety footwear and bore the ASTM stamp. Under the circumstances, the fact that Northern did not attempt to demonstrate that some other boot would be “as effective” as a boot that conformed to the performance standards was insufficient to show a lack of good faith in the interactive process.

MHRA claim. The appeals court also noted that a recent Minnesota Court of Appeals decision held that the MHRA places fewer duties on employers than does the ADA. However, because Northern satisfied all the ADA’s requirements, there was no need to decide whether claims under the ADA and the MHRA concerning the interactive process should be analyzed differently.

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