In a recent case coming out of the United States Court of Appeals in San Francisco entitled Livingston v. Fred Meyer Stores, Inc., No. 08-35597 (unpublished opinion 7/21/10), the Court ruled that a store wine steward whose visual impairment affected her ability to walk and drive after dark was considered an individual with a disability entitled to the protections afforded under the Americans With Disabilities Act (“ADA”). The appeals court held that even if Livingston did not have any restrictions during the day time hours, her nighttime vision impairment prohibited her from performing the same tasks as an average person and, as such, she was “substantially limited in the major life activity of seeing” and the employer was required to accommodate such condition.

Livingston’s condition of “depth perception difficulties under low light conditions” made it difficult for her to walk or drive a vehicle safely after dark. As such, Livingston requested a modified fall and winter schedule that would allow her to work an earlier shift and minimize her driving after dark While her request was granted in 2005, it was denied when she made the same request a year later. When Livingston refused to comply with the schedule, she was terminated.

Employers should be aware that even if an employee’s medical condition on its face does not appear to restrict the employee’s job duties, it still could be considered a “disability” under the ADA requiring an accommodation. Employers should therefore evaluate an employee’s condition carefully, and request legal guidance on how to best handle an employee’s alleged disability.