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Cashier With Doctor’s Note Requiring Her to Sit Half the Day Was Not a Qualified Individual Under ADA

By on October 12, 2012 in ADA with 0 Comments

Fern Strickland was hired by Eckerd Corporation in 1992. She worked as a cashier for the Jones Bridge Rite Aid.  In June, 2001, she was diagnosed with osteoarthritis in both knees.  Her condition made it difficult for her to walk without a cane or stand for long periods of time.

In 2001, Strickland requested permission to sit in a chair at work to relieve pain in her knees.  She had knee replacement surgery in her right knee in 2006, but her pain persisted. Her store manager exempted her from physically demanding tasks for many years and allowed her to sit frequently during the work day.

In June, 2007, Rite Aid acquired the store, and in March, 2008, Larry Frisbie became the district manager of the Jones Bridge Rite Aid.  Several months later, Frisbie and the HR Manager visited the store and observed Strickland sitting in a plastic lawn chair behind the counter.  Frisbie and the HR Manager confronted Strickland about the use of the lawn chair, and Strickland provided a copy of a 2007 doctor’s note advising that she needed to use the chair at work.

The company requested a more current note, which Strickland provided. This note, from December 2008, stated that Strickland required “a chair at checkout and limited to 15 minutes or less at a time due to osteoarthritis.”

The company’s loss prevention manager reviewed security surveillance tapes that showed that Strickland was sitting down half of her shift.  According to Frisbie, the job required cashiers to productively work on the sales floor in stocking, cleaning, and performing housekeeping duties when there was no customer at the register.

The company met with Strickland on January 15, 2009 to initiate an interactive dialogue regarding her restrictions and possible accommodations. Strickland provided another doctor’s note stating that she needed to sit 30 minutes every hour.  The company determined that it could not provide that specific accommodation and terminated Strickland’s employment. Strickland filed a charge with the EEOC alleging discrimination under the ADA.

The Court reviewed the essential job functions of a cashier and determined that the job required customer service and housekeeping duties that are physically demanding, including stocking shelves, building merchandise displays, and keeping the store clean.  Cashiers were expected when not working at the register to productively work on the sales floor. The Court commented that Strickland’s restrictions from osteoarthritis made it difficult for her to walk unassisted or stand for any lengthy period of time.   The Court concluded that Strickland could not perform the essential functions of the job and was therefore not a qualified individual under the ADA.  It said, “In fact, the sitting accommodation would simply eliminate rather than enable Strickland to perform, many of the essential functions of the cashier’s job . . . It is therefore per se unreasonable.”

The EEOC argued that the accommodation must be required because the company allowed Strickland to sit for the last eight years.  The Court disagreed, “[a]n employer’s willingness to provide a certain accommodation does not establish that the accommodation is reasonable or required.” Strickland and the EEOC argued that the functions she could not perform were obviously not essential because she had not done them for eight years.  Once again the Court disagreed:  “As with any other type of voluntary accommodation, an employer does not concede that a job function is unessential by temporarily removing the function from a disabled employee’s duties.”

This case resonates with many employers who have for years exempted employees from performing essential functions only to determine at some point that an exemption can no longer be allowed.  The question is whether the past practice of removing certain duties prohibits an employer from changing its position in the future.  The Court analogized to the situation where employers permitted frequent tardiness.  “[a]n employers past tolerance of tardiness does not negate evidence that punctuality is an essential function.”  To be covered under the ADA, an employee must be a qualified individual, one who can perform the essential functions of the job with or without reasonable accommodation.  Removal of an essential function is not a reasonable accommodation.

The case can be found at EEOC v. Eckerd Corporation d/b/a/ Rite Aid, 2012 U.S. Dist. LEXIS 91370, (N.D. Georgia 2012).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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