Wednesday, March 28, 2012

Courts are finally starting to apply ADAAA—and it ain’t pretty

It’s taken awhile for courts to start applying the ADAAA—the January 1, 2009, amendments to the Americans with Disabilities Act that rendered everyone with a medical condition disabled for purposes of the disability discrimination law. With one glaring exception, courts have concluded that the amendments are not retroactive, and only apply to personnel decisions taken on or after January 1, 2009. After a bit of a waiting period, courts are now starting to weigh-in on disability cases under the ADAAA, and, as expected, for employers it is not pretty.

Consider Wells v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 2/15/12). Elizabeth Wells, a nurse at Cincinnati Children’s, suffered from gastrointestinal problems. When she returned to work following gall bladder surgery and FMLA leave, she committed various errors (e.g., pulling morphine for a patient that had no orders for it) that called into question her fitness to work as a nurse in a Critical Airway Transplant Surgery unit. The hospital believed the errors were related to her post-surgical medicine, Lotronex, which can cause confusion, sedation, and equilibrium disorders. The hospital placed Wells on administrative leave and referred to her its employee assistance program. The hospital refused to reinstate Wells to the transplant unit after her doctor cleared her to return to work. Ultimately, it found her a position in a bone marrow transplant unit, albeit at reduced hours and with a pay cut.

The trial court concluded that Wells’s disability discrimination claim relating to the hospital’s failure to reinstate her to her old position should go to a jury. Notably, the court pointed out that she need only prove that the hospital “regarded her as having an impairment,” and, in contrast to the pre-amendment ADA, under the ADAAA’s “regarded as” prong, “a plaintiff … only has to prove the existence of an impairment…; she no longer is required to prove that the employer regarded her impairment as substantially limiting a major life activity.” In other words, as long as Wells could prove that the hospital believed she was impaired, the ADA covers her. That burden was easy for her to meet: “The gastrointestinal problems which caused Plaintiff nausea, vomiting, and diarrhea clearly qualify as a physiological disorder. Moreover, to the extent that the side effects of Plaintiff’s proper use of prescription medication adversely affected her ability to work, it would contribute to a finding that she was disabled.” Because the hospital essentially demoted her following her leave, her ADA claim survived.

The hospital’s only sin was that it did not want a nurse who blacks out and becomes confused when treating and administering narcotics to critically ill children. Perhaps, however, the hospital doomed itself by re-employing Wells at all. Because the bone marrow transplant unit also involved critically ill children, the court was skeptical of the employer’s rationale.

The ADA has become one of the most dangerous statutes for employers to administer. It covers virtually any medical condition, actual or perceived. Any time you are making an employment decision concerning any employee about whom you know, or believe, to have a medical condition, you will be best served to take a step back, take a deep breath, and take a few minutes to consult with your counsel. You do not want to shoot first and have to answer questions later.