Alaska Employment Law

Introduction

The Ninth Circuit issued a new opinion on February 13th, in which it analyzed a claim under the Americans with Disabilities Act and reversed summary judgment entered for the employer. The opinion is notable because it foreshadows how courts are likely to analyze ADA claims under the recent amendments that took effect January 1, 2009. Indeed, the Ninth Circuit expressly discussed the new amendments as part of its analysis, reasoning that the amendments reflected Congress’ original intent when enacting the ADA. The case is Rohr v. Salt River Project Agricultural Improvement and Power District, ___ F.3d ___, Slip Op. 1813 (9th Cir. Feb. 13, 2009). This summary briefly reviews the opinion and its significance.

Larry Rohr worked as a welding metallurgy specialist for Salt River Project (SRP) in its utility branch. Most of his work involved office-related activities. On rare occasions he was asked to work as a “borrowed hand” to help restore power. However, in 23 years of work this happened perhaps 12 times. In 2000, he was diagnosed with Insulin-dependent type 2 diabetes. Rohr’s diabetes resulted in chronic high blood pressure, deteriorating vision, and loss of feeling at times in his hands and feet. Two significant work-related issues arose in connection with his diabetes. First, because of his high blood pressure, he was unable to complete the breathilator testing component of a medical evaluation that was necessary to renew his respirator certification. OSHA required all employees who might be required to use a respirator to secure a respirator certification each year. Rohr was such an employee. Second, Rohr was unable to travel for “borrowed hand” work. He could not drive for more than 3 or 4 hours at a time, complete strenuous work, work for more than 8 or 9 hours in a shift, climb scaffolding or ladders, or work in extreme heat—all tasks that he would ordinarily be expected to complete as a part of “borrowed hand” work.

After a couple of years of give and take, SRP finally gave Rohr an ultimatum of sorts. SRP told Rohr that he had three choices. First, he could remain in his current position with SRP for 90 days while he sought another job with SRP that would be consistent with his work restrictions. Second, he could apply for disability benefits. Third and finally, he could apply for early retirement. SRP gave Rohr 90 days to decide what he wanted to do. There was no interactive dialogue involved. When the deadline came, Rohr decided to apply for disability benefits. He also filed a charge of disability discrimination with the EEOC.

Rohr’s claim ultimately wound up in court. SRP moved for summary judgment. The district court granted SRP’s motion, concluding that Rohr was neither disabled nor a qualified individual with a disability. On the issue of Rohr’s disability, the district court determined that Rohr was not disabled within the meaning of the ADA because his diabetes could be managed through remedial measures (insulin injections and diet). He was therefore not substantially limited in any major life activity. On the issue of Rohr’s status as a qualified individual with a disability, the district court concluded that Rohr was not qualified because he was not capable of performing the essential functions of his job; specifically, he was not able to secure a respirator certification. The district court therefore dismissed Rohr’s case. Rohr appealed.

The court reversed. The court held that genuine issues of material fact precluded summary judgment on the question of Rohr’s disability because he was substantially limited in the major life activity of eating. The fact that his diabetes could be managed to some degree by insulin injections was not controlling because the injections themselves could be dangerous, and also because Rohr could not easily determine how much insulin he had to take (the necessary amount varied depending upon activities and food intake).

In reaching this conclusion, the court borrowed heavily from the reasoning underlying the ADAA. The court acknowledged that, technically, the ADAA did not take effect until January 1, 2009. However, the court reasoned that the ADAA reflected Congress’ original intent when it enacted the ADA. The court pointed out that the ADAA changed how courts analyzed disability claims in at least three respects that were relevant to Rohr’s case: (1) the ADAA specifically added “eating” as a major life activity; (2) the ADAA disapproved the way that courts had interpreted and applied “substantial limitation” as creating a high level of limitation necessary to trigger ADA protections; and (3) the ADAA criticized the manner by which courts had concluded that one could not be substantially limited in a major life activity if a mitigating measure were available to lessen the degree or scope of the impairment. The court recognized that it was not actually applying the ADAA standards. However, the court reasoned that the ADAA simply reflected Congress’ original intent when it enacted the ADA, and was therefore of some relevance in analyzing Rohr’s claim.

On the issue of Rohr’s status as a qualified individual with a disability, the court concluded that the specific test being used by SRP was discriminatory in application. OSHA required that employees such as Rohr be certified to use respirators. However, OSHA did not specify what tests were required. SRP never explored whether any other tests might be used to certify Rohr. Therefore, the court held that genuine issues of material fact precluded summary judgment. The court went further and held that it was an open question as to whether or not Rohr even needed a respirator for the type of work that he was actually performing. The court therefore reversed summary judgment and remanded the case to the district court for trial.

The ADAA of 2008 became effective on January 1, 2009. However, the court read it as reflecting the original intent of Congress when it enacted the ADA. The result here foreshadows how courts will likely analyze claims filed under the ADAA.

Recommendations

I am also admitted in Arizona, and familiar with SRP. I was surprised that SRP would have made so many obvious errors. The major error (and one not addressed by the court) was that SRP never engaged in any form of interactive dialogue. Employers should avoid dictating terms when exploring available reasonable accommodations. Beyond that, SRP adopted a “cut and paste” approach that is ill-suited for the individualized inquiry necessary under the ADA (and that will be required under the ADAA). Employers should get familiar with the ADAA of 2008 because it seems likely that courts will be analyzing previously-filed claims in light of Congress’ perceived original intent.