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Back From Painful Ear Surgery, Receptionist Who Asked To Use A Phone Handset Placed On Her Temple Is Fired

Posted in Americans with Disabilities Act, Uncategorized

The human body is a frail vessel, prone to defects, injuries, and limitations.  Nonetheless, employers must negotiate the thicket of illnesses, injuries, and all manner of medical conditions which their employees suffer ever mindful of the changing and complex rules of the Americans With Disabilities Act (“ADA”).

Issues such as what constitutes a physical or mental impairment, what “substantially limits one or more major life activities,” or, indeed, what is a “major life activity” must be dealt with, and reasonable accommodations must be made – assuming an employer knows what is considered  “reasonable” under the circumstances.   A recent court decision illustrates the complexity of the situation.

A “pharmacy technician” in a Florida store, although born deaf in one ear, was nonetheless employed satisfactorily answering the phone, dealing with customers, filling prescriptions, and working with the store pharmacists.  Unfortunately, she required cancer surgery on her good ear which caused her to experience sufficient post-operative pain that she could not hold the phone to the good ear.

When she came back to work she tried using a speakerphone, but had to abandon that because of customer confidentiality concerns.  She was able to devise a way to put the phone handset to the side of her head and could satisfactorily use the phone to accomplish her job duties.   The company was apparently unhappy with this, and for some reason made her take a hearing test.  They learned nothing new – that she was deaf in one ear, had normal hearing in the other ear, but required, according to her doctor’s prescription, pain management care for the good ear.

The company, however, never attempted to accommodate her, by, for example, letting her use the already tested “headset to the temple” arrangement, but instead placed her on a leave of absence, and then fired her. 16126490_s

She sued under the ADA, and state law.  The Court denied summary judgment to the company, holding that she had an “impairment” and was “disabled” under the ADA:

“Not only is [she] deaf in her right ear, but she has neuropathic pain in her left ear.  … an impairment that is more severe and limiting than either impairment on its own. … [She] claimed her impairment has affected her ability to sleep, dress, groom, and touch anything to her ear.  [She] has submitted evidence that, when taken in a light most favorable to her, suggests she has substantial limitations in several ‘major life activities’ under the ADA, including sleeping, hearing, communicating and working.”

The Court concluded that in light of the ADAAA (the broad ADA amendments) and for purposes of summary judgment, “[she] has presented enough evidence to suggest she is actually disabled. …”  And contrary to the claim of the company that she was not a “qualified individual” with a disability (i.e., someone who can perform the essential functions of an employment position, with or without a reasonable accommodation), the Court found that a reasonable jury could find that she was able to perform the essential functions of her job with an accommodation, and thus is a qualified individual.

Takeaway:  “Reasonable accommodations” may take strange or unorthodox forms, but they are required under the ADA if they do not create an undue burden on the employer.