Employees with disabilities are sometimes caught between the desire to work and the need to apply for public or short-term disability benefits for survival purposes. The Ninth Circuit does a good job in explaining how these are not necessarily in conflict, reversing summary judgment in an Americans with Disabilities Act case where a school teacher had to apply for disability retirement.
Smith v. Clark County school Dist., No. 11-17398 (9th Cir. Aug. 25, 2013): The employee Ms. Smith worked as a literary specialist for the district. “Literary specialists train and assist elementary school teachers with teaching and testing student literacy skills, but literary specialists are not responsible for all of the duties needed to teach a class of students.” This assignment worked fine for Ms. Smith, who had limited mobility due to a back injury. Yet when the district sought to move her into a full-time kindergarten position, she balked. She contended, in a meeting, that “standing, bending, [and] stooping required to be an effective kindergarten or elementary school teacher” exceeded her limitations.
Shortly after this meeting, “Smith aggravated her back while sorting boxes at work, and she was unable to work as a literary specialist for the rest of the school year. During the next few months, Smith applied for family medical leave and disability benefits.” In her application with the Nevada Public Employees’ Retirement System (PERS) for disability retirement, her doctor certified that Smith was “unable to work due to injury or mental or physical illness.” The PERS Board approved Smith’s application for “total and permanent disability” in October 2008.
Smith Thereafter filed an action alleging violations of the Family and Medical Leave Act and the ADA, the latter for failure to accommodate her limited mobility. The district court granted summary judgment on the basis that Smith was not a “qualified individual” under the ADA, because she swore on her applications for disability benefits that she was permanently disabled and thus not “qualified” for work.
The Ninth Circuit reverses. Citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), the panel observes that it was possible for an employee to qualify for disability benefits but still be “qualified” to work. Welfare benefit plans – unlike the ADA – often do not consider whether a person can work with accommodations:
“[T]here are situations in which PERS, FMLA, and private insurance disability claims can coexist with an ADA claim. Because none of these applications account for an applicant’s ability to work with reasonable accommodation, it is possible that a person could claim he or she qualifies for disability benefits and still be able to work if accommodated.”
There are also circumstances where an employee may honestly avers that he or she cannot work when they apply for benefits, and then recovers:
“There is no inconsistency between being totally disabled at a particular point in time and in not being totally disabled at a later point in time. Both the FMLA and the American Fidelity benefits applications contemplate an end to the applicant’s inability to work by asking when the applicant anticipates returning to work. And although a PERS application requires a more permanent disability, neither the applicant nor the applicant’s doctor is required to say that the applicant can never work again. Rather, both applicant and doctor are asked present-tense questions about whether the applicant ‘can’ perform her current or former job or whether she ‘is unable’ to work. Because There may be circumstances in which the application for, or receipt of, benefits from PERS, FMLA, or private disability benefits could coexist with an ADA claim, we will not apply a conclusive negative legal presumption against Smith’s ADA claim.”
Thus, although the plaintiff’s arguably conflicting statements about her fitness to work may be admissible at trial, for an employer to argue that the employee was not “qualified,” the panel holds that it is the jury and not the court decides whether these are reconcilable:
“Smith explains that the PERS application did not account for her ability to perform the literary-specialist position with the accommodation that she be able to sit down regularly or lie down when needed. This explanation is consistent with Smith’s PERS application in which she stated that she could perform the ‘sitting’ duties of the literary-specialist position. It is also consistent with Smith’s assertions, including in her complaint, that she could work as a literary specialist because it allowed her to sit during the day and it was not as physically demanding as teaching kindergarten.”
Accordingly, “The statements relied upon by the school District may be admitted in evidence and weighed by the jury, but they should not be preclusive of Smith’s claim at the summary-judgment stage.”