As most of you know, the Americans with Disabilities Act has been a bit of a moving target for employers over the last few years with the expansion of the Act and the regulations making it easier to for employees to make a claim. As a result, every new court opinion on the issue helps provide some clarity on the status of the law as it stands today. On May 14, 2013, the U.S. Court of Appeals for the Tenth Circuit (the federal appeals court for Oklahoma) handed down an opinion discussing employer obligations under the ADA.
The case, Koessel v. Sublette County Sheriff’s Dept., et al., Case No. 11-8099, concerned the termination of a patrol officer. The officer, Kevin Koessel, suffered a stroke and subsequently was placed on administrative leave during his recuperation. Several months later he was released by his doctor to work full time, but was restricted from working overtime. The sheriff’s office returned him full-time to an office job, but allowed him to make routine traffic stops on his commute. Over the next several months, other officers reported concerns about Koessel’s behavior, performance, and temper on the job. For example, a captain reported Koessel could not remember a word when he was performing a traffic stop. And on at least one occasion, he went home early because of blood pressure issues. Based on this information, Koessel was restricted to office duty and back-up responsibilities and was required to submit to an independent medical exam.
The sheriff sent a letter to the doctor explaining his concerns about Koessel — specifically, his memory lapses and blood pressure. The doctor concluded that while neurologically he could work, Koessel was having some cognitive issues from the stroke that needed to be investigated. The doctor recommended Koessel be examined by a neuropsychologist. The neuropsychologist found that some of his issues could interfere with performance of law enforcement duties and recommended Koessel be placed in a low-stress position where he would not have regular contact with the public.
When Koessel returned from leave, he was placed in a temporary position. About a month later, the funding for the position was denied, and Koessel was again placed on leave. Having no other position for him, the sheriff terminated Koessel a few months later. The patrol officer sued, claiming the sheriff terminated him based on a perceived disability when he was not actually disabled, and arguing he could perform the essential functions of his job.
The Disability Claim
In order to make a case for discrimination under the ADA, a plaintiff must prove 1) he is disabled (or perceived as disabled, 2) he is qualified to perform the essential functions of his job with or without a reasonable accommodation, and 3) he suffered discrimination as a result of the disability.
The court did not even have to address the first issue because the sheriff’s office did perceive him as being disabled. The real issue was whether Koessel could perform the essential functions of the job with or without a reasonable accommodation. The court reminded everyone that an “essential” function of a job is one that is fundamental to the position that all people in the same position have to perform. So, for a patrol officer, it was not surprising that an essential function of the job included dealing with the public in high-stress situations on a regular basis. Koessel was adamant that he could perform these functions and pointed to the fact he had been cleared by his physician to work full-time, he had performed multiple traffic stops since the stroke without incident, he commuted in his patrol car after the stroke without incident, the neurologist found no physical reason he could not perform his job, and his psychological tests were the same as before his stroke. The sheriff pointed to the physician’s opinion that Koessel be placed in a low-stress job and have limited contact with the public. Koessel offered no evidence to counter the neuropsychologist’s opinion that he needed to be in a low-stress job with limited public interaction, and the fact that he had performed portions of the job after the stroke without incident was of no help. The court noted that employers are able to set standards – even extreme standards, when justified – like the job of a patrol officer. Thus, the court agreed with the sheriff that Koessel was not able to perform the essential functions of the job.
What about providing him a reasonable accommodation? Well, Koessel never requested an accommodation, which is required under the ADA. Nevertheless, Koessel argued he asked for reassignment to another position but was not given that option. The court reiterated that employers are only required to reassign people when there is a vacant position available, and they are not required to make a temporary position a permanent position as an accommodation. Koessel could not identify any open permanent positions for which he was qualified. Accordingly, the court dismissed his case.
While the ADA has been expanded in certain areas – such as what constitutes a disability – there are still other things that remain unchanged. Here, the court found in favor of the sheriff and held: 1) Koessel must be able to perform the essential functions of his job; 2) the sheriff is able to set the standards for the position; and 3) the sheriff is not required to create a position for Koessel to fill.
One other thing to note is that the court found the employer reasonably relied on the findings of the independent medical exams. However, keep in mind, it did so in light of the fact the employee offered nothing to contradict those findings. So, if you are faced with contradictory medical opinions, you might want to seek a “tie breaker” or just err on the side of caution and provide an accommodation if available.