DIABETIC DISTINCTIONS: THE ADA AND THE ADAAA
While the enactment of the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) has placed the landscape of federal disabilities law squarely in a state of transition, it continues to be the position of the West Virginia Supreme Court of Appeals that decisions interpreting the Americans with Disabilities Act of 1990 (“ADA”), the predecessor to the ADAAA, are helpful in interpreting the West Virginia Human Rights Act. With that in mind, and with the distinction between the ADA and the ADAAA lurking in the background, employers in West Virginia should pay particular attention to the Fourth Circuit’s recent decision – albeit unpublished – in Schneider v. Giant of Maryland, LLC.
In 1963, Schneider was diagnosed as a Type-1 diabetic. Insulin injections kept his condition mostly under control, but in early 2001, Schneider’s condition began to result in foot ulcers, which led to his medical professionals advising him to avoid weight-bearing activities.
Despite his struggles with diabetes, Schneider had a successful career in pharmacy. After 21 years as a staff pharmacist for Giant of Maryland, LLC (“Giant”), he was promoted to regional pharmacy supervisor in 2000, a position which required extensive travel within the district he covered.
On June 2, 2005, Schneider was involved in a car accident on the job when he had a hypoglycemic reaction and blacked out while driving. Because of the accident and its seizure/blackout policy, the Virginia DMV provisionally suspended Schneider’s license until December 28, 2005. On August 14, 2005, Schneider informed his supervisor of the suspension (though he did not provide his supervisor with the reason for it).
Due to the suspension of his license, Schneider was restricted from performing some of the requirements of his job as pharmacy supervisor, and as a result, he agreed to be reassigned – with the same pay – as a pharmacy manager. The new position, however, required him to be on his feet for the majority of the day. Although he was in constant pain, he never asked for assistance in reducing the time spent on his feet at work during the fall of 2005.
In January 2006, Schneider’s podiatrist sent a letter to Giant, recommending that Schneider return to his previous position as a regional pharmacy supervisor. The recommendation was based on the doctor’s opinion that the change in Schneider’s position had “severely exacerbated Schneider’s diabetic foot problems.” In addition to his doctor’s letter, Schneider sent a letter to Giant’s Director of Human Resources seeking to be reassigned to his prior position.
On September 25, 2006, Schneider blacked out at work and was admitted to the hospital. Afterwards, an HR representative for Giant met with Schneider to discuss a physician’s note restricting Schneider’s work to limited duty. When asked if he needed any special accommodations, Schneider told the HR representative that he was concerned about standing all day. In turn, the HR representative informed Schneider that he would need a physician’s note providing clarification regarding the restriction to limited duties.
Several months later, Schneider filed a lawsuit against Giant alleging disability discrimination. The District Court dismissed Schneider’s claim and, on appeal, the Fourth Circuit Court of Appeals (which covers West Virginia) affirmed the District Court’s decision.
The Fourth Circuit initially observed that, although Schneider had lived with Type-1 diabetes since 1963, the illness did not significantly interfere with his daily life until 2001, and did not affect his job performance until August 2005, largely because the insulin injections he was taking then were considered to be mitigating measures.
Additionally, the court noted that, even if Schneider had been disabled in August 2005, Schneider never made his employer aware of the existence of any such disability or requested an accommodation for that condition (as opposed to an accommodation for his driver’s license suspension). According to the Court, Giant’s “management should not be held responsible for guessing that the diabetes had progressed to a point where Schneider was a disabled person under the ADA.”
While Schneider was clearly disabled as a result of his diabetic condition by 2006, and while both Schneider and his doctor had requested that Schneider be accommodated by reassigning him to his previous position of pharmacy supervisor, the Fourth Circuit concluded that Giant still was not obligated to return Schneider to his previous position, which Giant had already filled based upon continuing uncertainty over when Schneider’s driver’s license suspension would be lifted. Determining that Schneider had not requested any other form of accommodation, the Fourth Circuit was unwilling to conclude that Giant failed to accommodate him.
The Fourth Circuit’s decision in Schneider provides another interesting glimpse into how courts decide whether an employee is actually disabled and what, if any, requested accommodations are actually reasonable. What may have been most interesting about the case, however, was that the Fourth Circuit felt that the employer had met its obligations under the ADA despite not engaging in further dialogue with Schneider about potential accommodations other than reassigning him to his previous position. Commonly, that dialogue is referred to the ‘interactive process’.
Had the circumstances at-issue in this case occurred under the ADAAA, the Court may have reached a different result, not only since mitigating measures are now rarely considered to render a person outside the coverage of the Act, but also since there has been an increased emphasis on employers engaging in a thorough interactive process with employees to see if there are potential accommodations for them under those amendments. While the Fourth Circuit didn’t expressly come out and say this, a footnote in the opinion made clear that they felt compelled to apply the ADA – rather than the subsequent amendments to the law – to the facts of the case.
That distinction may very well have made a difference in the outcome of the case. In fact, some would say that the ADAAA was enacted to avoid the result reached in a case like Schneider.
While the decision of the Fourth Circuit in Schneider would be persuasive in West Virginia (or at least as much as an unpublished opinion can be), employers still need to be mindful of their potential obligations under the ADAAA when dealing with current accommodation issues. In handling those issues, it is important that employers participate in a meaningful interactive process with their disabled employees. While it remains true even under the ADAAA that covered employers don’t need to disrupt another employee’s position or employment simply to accommodate a disabled employee, that doesn’t mean an employer always should stop there in considering potential accommodations. In some circumstances, even a leave of absence may be considered an appropriate accommodation. Therefore, employers need to work diligently through this effort with their employees – with the help of counsel – to make sure they don’t end up not only on the wrong end of a more broadly construed state anti-discrimination law, but also an increasingly broadly construed federal anti-discrimination law.