Plaintiff was one of two hairdressers at a nursing home. Two days each week, she wheeled residents in their wheelchairs from their rooms to the nursing home’s beauty shop, styled their hair, and then wheeled them back to their rooms. These trips took an average of two and one-half minutes. On her other workdays, plaintiff styled the hair of residents who could walk to the beauty shop.
Plaintiff took time off from work to have surgery. When she was released to return to work, her physician instructed her not to push wheelchairs, stating that over time, pushing would cause her mesh lining to tear loose and require surgical repair. When plaintiff informed her employer that she could no longer push wheelchairs, she was told that the facility did not allow employees to work with permanent restrictions. Plaintiff’s requests for an accommodation – such as that other employees could push the wheelchairs for her, or that she could transfer to another job (working in the laundry room) – were rejected on the spot.
Plaintiff quit her position and sued the nursing home under the Americans with Disabilities Act. The employer claimed that wheeling residents was an integral part of plaintiff’s job and took 60 to 65% of her workday, while plaintiff estimated that it took only 6 to 12% of her time, on only two days per week. (There was also evidence that after the plaintiff left the job, the other hairdresser received help from other employees in pushing the wheelchairs, and that this did not adversely affect the employer’s operation.) A federal trial court summarily dismissed the complaint and granted judgment for the employer, ruling that wheeling residents to and from beauty parlor appointments was an essential function of the hairdresser position given the employer’s time estimates.
The Seventh Circuit of Appeals, in Chicago, reversed the lower court in Kaufmann v. Petersen Health Care VII, LLC, 2014 U.S. App. LEXIS 19849 (7th Cir. Oct. 16, 2014). Based on its own analysis of the time needed to transport the residents to the beauty parlor and the time spent by staff with each resident, as well as the that the wheeling duties had been reassigned without issue during the time between plaintiff’s resignation and her replacement’s hire, the court concluded that whether wheelchair-pushing was an essential function was a factual issue to be determined by a jury.
The takeaway for employers:
- always engage an employee in an “interactive process” to determine whether an appropriate accommodation can be made;
- consider “job restructuring” as an accommodation under the ADA; and
- remember that you may be required to accommodate employees’ permanent restrictions.