The case of Dark v. Curry County from the 9th Circuit federal Court of Appeals adds more complexity to the continuing duty of employers to accommodate qualified employees with known disabilities. Here’s what happened. From the age of 16, Robert Dark suffered from epilepsy. He controls the condition with medication but still endures the occasional seizure, which is usually preceded by what is called an “aura.” An aura is “akin to a nervous jerk”; it indicates “the potential for a seizure on the day of the aura,” typically no sooner than one hour later. Dark says that a seizure follows an aura approximately half of the time.
Dark had a job with the Road Department. He operated heavy equipment such as construction vehicles. Dark’s 16 year employment record was satisfactory.
One morning, Dark experienced an aura. Despite this warning, Dark reported for work but told no one he might suffer an epileptic seizure. Later that day, Dark suffered a seizure and fell unconscious while driving a County pickup truck. Fortunately, Dark was operating the vehicle at a very slow rate of speed. His passenger, another Road Department employee, gained control of the vehicle and brought it to a safe stop.
Dark underwent a medical examination at the County’s request. A neurologist, concluded that “because of the presence of poorly controlled idiopathic epilepsy, [Dark] should not work in high places, he should not work around moving machinery where sudden loss of consciousness would endanger either himself or others, and this would appear to severely limit him from the duties of the job described.” Dark’s doctor said this was a temporary condition and should come under control with adjustment of medication.
The Road Department fired Dark. It sent him a letter concluding that Dark could not perform the essential functions and duties of his position because of his epilepsy and that his continued employment posed a threat to the safety of others. The County made no attempt to accommodate for Dark.
Dark appealed to the Curry County Board of Commissioners. The Board affirmed, reasoning that Dark had “acted irresponsibly, recklessly, and with a total disregard of the safety of himself, other employees, and members of the public.” Dark filed suit alleging the County violated the ADA by discharging him while refusing reasonably to accommodate his disability.
The county thought it had a “slam-dunk” and filed a motion for summary adjudication of the claim in their favor. The court denied the motion. Why? Because the county gave two different reasons for terminating Dark. The termination letter was replete with references to Dark’s disabling condition, such ”you cannot perform the essential functions and duties of the job of Maintenance and Construction Worker III as described is substantiated . . . . Following your on the job seizure on 1/15/02, the County had sufficient concerns regarding your medical condition to request an independent Neurologist to evaluate you . . . I believe a “seizure free” condition is critical for workers in your occupation . . .. [Y]our condition in my opinion prevents you from performing your duties . . . . “
The letter mentioned the failure to report the aura but it was not cited as grounds for the termination. It was only after Dark appealed that the review board cited his failure to report as misconduct justifying his termination. But Dark was already terminated for his disability, so the misconduct was only thrown in after the fact of his completed termination. Even if the court considered the misconduct as a true reason, misconduct that is caused by the disability cannot be a legal justification for the termination. In addition, Dark and other employees had been involved in accidents before and not been disciplined. This raised the question of whether the accident was the real reason for the discipline.
What should the County have done to accommodate Dark? There were other positions, flagman for instance, that Dark could have performed until his medication could be adjusted to bring his seizures under control. Said the court, “[w] e adopt the Tenth Circuit’s rule: in considering reassignment as a reasonable accommodation, an employer must consider not only those contemporaneously available positions but also those that will become available within a reasonable period.”
So now an employer must not only consider reassignment to existing vacant positions, but those positions that may become vacant in the future. The employer is now responsible for reviewing the future needs of his operations and foreseeing what jobs might became available. The employer may be required to place the employee on leave of absence until the position becomes available. Must the employer also consider reassignment to a position that does not even exist but which may exist within a reasonable period? The case poses interesting challenges for employers who navigate the maze of ADA. But, such is nature of today’s employment law and vigilance and education is the best way to avoid a misstep in this tricky area.
Original article by Phillip J. Griego of Phillip J. Griego & Associates
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