Judge Posner has again elegantly stated the not so obvious. It’s an old saw that under the Americans with Disabilities Act it is unlawful for employers to require employees with disabilities to be 100% healed before they can return to work.[1]
A recent decision from the 7th Circuit holds the obverse – that an employee who is 100% disabled may have a right to continue working under the Rehabilitation Act’s parallel protections for employees of employers who receive federal funding.
In Rutledge v. Illinois Dept. of Human Services, — F.3d —-, 2015 WL 2058808, Case No. 15–1028 (7th Cir. May 5, 2015), a district court dismissed the Rehabilitation Act wrongful-termination lawsuit of a veteran rated as 100% disabled by the Veteran’s Administration due to serious psychiatric disabilities, including post- traumatic stress disorder, schizophrenia, bipolar disorder and depression. The district judge dismissed the entire suit “without waiting for a motion or answer” concluding that that an employee who was determined to be 100% disabled could not have been qualified to work at any time after that determination was made. Not so says Judge Posner – decrying the stereotypical assumption that merely because the average person with these disabilities could not work, this individual Plaintiff was unable to do so:
“The judge’s second ground was that the finding by the Department of Veterans Affairs that the plaintiff was 100 percent disabled meant that he “was unable to perform his job [for the Illinois Department of Human Services] as a residential case worker, with or without accommodation, at any time after 2004” (the date of the VA’s determination). That’s wrong too. A veteran is deemed totally disabled if he suffers from an impairment that would “render it impossible for the average person to follow a substantially gainful occupation,” even if the veteran applying for benefits is able, through exceptional ability or exertion, to work full time. 38 C.F.R. § 4.15 (emphasis added); Veterans Benefits Manual §§ 3.1.1.2, 5.1.3 (Barton F. Stichman et al., eds., 2014 ed.). There is no paradox in a person deemed totally disabled by the Social Security Administration or the Department of Veterans Affairs or some other agency nevertheless wanting, finding, and holding a job, whether out of desperation or by extraordinary effort or because his employer feels sorry for him or because the agency that found him totally disabled was mistaken in thinking that his physical or mental ailments, even if very serious, were totally disabling.
The Illinois Department of Human Services must have believed, despite the plaintiff’s VA disability rating and extensive history of mental illness, that he could do the job they hired him for. Why else would they have hired him? As we noted recently, “A disabled person may want to work, may seek work, and in some cases may land work. We’ve noted cases in which although the claimant is not only working but also earning a decent wage he really is permanently disabled from engaging in gainful activity. Maybe his boss feels desperately sorry for him and is retaining him on the payroll even though he is incapable of working. That act of charity ought not be punished by denying the employee benefits and thus placing pressure on the employer to retain an unproductive employee indefinitely. Maybe a seriously disabled worker is able to work only by dint of his extraordinary determination and the extraordinary assistance extended to him by kindly fellow workers.” Voigt v. Colvin, 781 F.3d 871, 876–77 (7th Cir.2015), quoting Jones v. Shalala, 21 F.3d 191, 192 (7th Cir.1994) (citations omitted). These comments were made, moreover, without reference to an employer’s duty to provide a “reasonable accommodation” necessary to enable a disabled person to work. 42 U.S.C. § 12112(b)(5)(A); Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir.2013); Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737, 747 (7th Cir.2006). For all we know, the Department of Human Services either made such an accommodation to enable the plaintiff to work as an assistant nurse or didn’t think he needed it in order to be able to do that work.”
This conclusion flows naturally from the holding in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S. Ct. 1597, 143 L.Ed.2d 966 (1999) that an employee who applies for and receives social security disability benefits after she is terminated may still make the showing required by the ADA that she could perform the essential functions of her job with or without reasonable accommodation. It reminds employers that they have an obligation to retain employees with even the most serious disabilities if they can perform their essential job functions with or without reasonable accommodation. The decision also alludes to an employer’s alternative obligation to disclose the availability of disability benefits when an employee does not meet these qualification standards. See, e.g. Hamilton v. Allen-Bradley Co., Inc., 244 F.3d 819 (11th Cir. 2001).
[1] Hohider v. United Parcel Service, 574 F.3d 169, 194–96 (3rd Cir.2009) (holding that a 100% healed policy violates the ADA if it has the effect of discriminating against an otherwise qualified individual with a disability ); Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir.2001) ( “[A] 100% rule is impermissible as to a disabled person—but one must first be disabled.”) (alteration and emphasis supplied); McGregor v. National R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir.1999) (“A “100% healed” or “fully healed” policy discriminates against qualified individuals with disabilities because such a policy permits employers to substitute a determination of whether a qualified individual is ‘100% healed’ from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation.”) (emphasis supplied); Hendricks–Robinson v. Excel Corp., 154 F.3d 685, 698–99 (7th Cir.1998) (invalidating an employer’s policy that made “physical fitness” a necessary job requirement). Moore v. Jackson County Bd. of Educ., 979 F.Supp.2d 1251, 1265-1266 (N.D.Ala. 2013) (Holding in Rehabilitation Act case citing these holdings that “[t]his court has no reason to doubt that the Eleventh Circuit would adopt a similar holding if it were confronted with the issue.”)
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