Despite that the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008), will eventually render such decisions unnecessary, here’s a good case that reverses summary judgment involving an insulin-dependent employee who is able to establish both that he is “disabled” under ther pre-amendment ADA and that he was a “qualified individual.” And the panel suggests a way in which the ADAAA may help even those whose claims fall prior to the effective date.
Rohr v. Salt River Project, No. 06-16527 (9th Cir. Feb. 13, 2009): Prior to the ADAAA, employees litigating ADA cases often found themselves on the horns of a dilemma, needing to prove that they were substantially limited in one or more major life activities, but not so impaired as to fall below the threshold of “qualified individual.” While the new act will relieve at least the former issue, there remains (for damage cases, at least) the problem that the effective date is January 1, 2009, and that the act is presumptively non-retroactive (Landsgraf v. USI Film Products, 511 U.S. 244, 284-285 (1994)). So for a while longer — such as this case, where the appeal was filed in 2006 — we will have to pick over the dessicated and outmoded case law under the pre-amendment ADA.
The employee’s limitations were associated both directly with the diabetes itself, and with the treatment (i.e. mitigating measures) that he was required to follow to maintain it:
“Now, his condition was deteriorating: despite daily insulin injections, medication and stringent diet, his vision had decreased, his hands and feet sometimes felt numb, and exhaustion made him sick rather than simply tired. Sometimes he felt sick for no apparent reason. [ER 65.] He had to follow a ‘very demanding regimen’ to manage his diabetes. In addition to daily injections of insulin, he had to test his blood sugar three to four times a day, could not eat large meals or
skip meals and needed to snack on something every few hours. [ER 65.] During travel he had to find a way to keep his insulin refrigerated or chilled. Changes in the length of his work day greatly affected his treatment routine. [ER 65.] Because his condition was deteriorating, his doctor had doubled the strength of his medication and increased the units of insulin that he took each day. [ER 89.] He told his supervisor that his treatment had become his first priority and he had to schedule ‘everything else’ in his life around it. [ER 89.]”
The company placed the employee on the following permanent work restrictions:
“1) No rotating shift work.
“2) A workday limited to 9 hours per day.
“3) Limitation on thermal stress avoiding prolonged work in high temperature poorly ventilated work areas with preference to prolonged work in climate controlled environments only [sic].
“4) No heavy exertional activities . . . .
“5) No working from unprotected heights and no unprotected climbing.
“6) He should be required to carry with him an immediate source of sugar such as a sugar tablet during working hours.”
Critically, the plaintiff was also placed on travel restrictions, i.e., that he “not be given overnight out-of-town assignments.” The plaintiff made several attempts to get this restriction lifted, to no avail.
Within six months, though, the company concluded that these restrictions prevented the plaintiff from carrying out essential functions “such as overnight travel to assist as a borrowed hand during outages and travel to conduct inspections and trainings.” He was eventually compelled to take long-term disability leave. He filed a charge and, thereafter, a lawsuit.
The Ninth Circuit reverses summary judgment. On the “disability” issue, the panel finds that the employee presented a genuine issue of fact about whether he was substantially limited in the major life activity of eating. The opinion frankly notes the district court’s insensitivity on this issue:
“The district court oversimplified Rohr’s condition when it opined that ‘if he stays on his medicines and watches what and when he eats the only limitation on his activities are the
work-related restrictions recommended by his physicians.’ [ER 124.] While it may seem easy to take a pill or shot of insulin, the reality of diabetes, a chronic and incurable disease, is not so simple. For people like Rohr, who must treat their diabetes with insulin, the failure to take insulin will result in severe problems and eventually death. See American Diabetes Association Position Statement: Insulin Administration, Diabetes Care 27:S106-107 (2004). Insulin injections themselves can be dangerous. Rohr stated in his deposition that it is difficult to determine how much insulin to take, as the necessary amount varies depending on the food and activity level.”
As an aside, the panel describes the ADAAA and observes that, while the substantive provisions may not apply to the present case, the Congressional findings reflect on the original intent behind the ADA and support the panel’s decision in this case: “While we decide this case under the ADA, and not the ADAAA, the original congressional intent as expressed in the amendment bolsters our conclusions.” So individuals litigating claims that fall before the effective date may still be able to use the ADAAA recitals to push a close case over the line.
The panel also finds that there is a genuine issue of material fact about whether the employee was qualified. The employe claimed that he was unable to take a mandatory respirator certification test (because of high blood pressure. But the court holds that “OSHA’s regulations were sufficiently broad to allow Salt River the discretion to determine how, and how often, it would evaluate its employees’ ability to use a respirator.
As such, there is a genuine issue of fact whether Salt River could have provided reasonable accommodations to enable Rohr to complete the test.” The panel also holds that because “Salt River has failed to show that the respirator certification test was job-related and a business necessity, and because the test tended to screen out an individual with diabetes-related high blood pressure, Salt River has not established that it is entitled to summary judgment.”
The panel concludes that there is genuine issue of material fact about whether the employee could perform the essential functions of his job: “Diabetes did not prevent Rohr from performing the bulk of his job, which, as described supra, was mostly office work. The disease did, however, prevent him from participating in out-of-town and overnight field assignments to repair outages. The parties dispute whether such field assignments
were an ‘essential function’ of his job, and Salt River’s own medical staff stated that he was ‘physically able to perform the essential functions of his job with the accommodations as outlined.'”