Applicant Who Could Not Raise Arm Protected by ADA

By Jeffrey L. Rhodes Feb 10, 2016

An applicant for a field engineer position who had a prescription for painkillers and could not fully lift his right arm had a viable claim under the Americans with Disabilities Act (ADA), the 5th U.S. Circuit Court of Appeals ruled.

Jacobs Field Services (JFS), a construction company, offered Michael Cannon a job as a field engineer at a Colorado mining site. After offering him the position, JFS conducted a pre-employment physical and learned that Cannon had had unsuccessful surgery to repair a torn rotator cuff in his right shoulder. As a result, Cannon could no longer raise his right arm above shoulder level. Cannon told the examining doctor about his rotator cuff injury and that he had taken an opioid painkiller. Cannon explained that he was no longer taking the drug despite having a prescription for it.

The examining doctor cleared Cannon for the position so long as JFS accommodated Cannon by restricting him from driving company vehicles, lifting, pushing or pulling more than 10 pounds, and working with his hands above shoulder level. When the human resource department received the medical clearance form, it notified the technical services manager at the Colorado jobsite of these limitations. The technical services manager stated that Cannon would not be able to meet the project needs because the job required an employee capable of driving, climbing, lifting and walking. The manager also stated that the jobsite was located in the mountains with rough and rocky terrain spread out over several miles.

HR contacted Cannon and stated that JFS had concerns about his inability to raise his right arm above his head. Cannon asked whether he could contact someone to allay the concerns and was told to call the Occupational Health Department. Cannon did so, and the department told him to clarify whether he could climb a ladder and if he was still taking the painkiller. There was no indication that the job offer would be rescinded. Cannon provided the requested information, submitting documentation from his doctor stating that he was cleared for safely climbing vertical ladders and was being weaned from the drug.

No one from JFS followed up with Cannon to discuss the documentation. Instead, the same day Cannon provided the clearance forms from his doctor, JFS notified him that it was rescinding its offer based on his inability to climb a ladder. Cannon thereafter tried to contact JFS and discuss his limitations, but these efforts were unsuccessful.

Cannon filed a complaint with the Equal Employment Opportunity Commission (EEOC), and the EEOC concluded that JFS had failed to engage in the interactive accommodation process or to show that Cannon would have posed a direct threat to himself or his co-workers. The EEOC issued a right-to-sue letter, and Cannon filed a federal lawsuit.

The district court granted summary judgment against Cannon, thereby dismissing the suit before trial. It ruled that Cannon’s rotator cuff injury did not render him disabled under the ADA and that he was not qualified for the field engineer position. On appeal, the 5th Circuit reversed the district court’s decision and reinstated the claims.

The 5th Circuit found that the ADA Amendments Act of 2008 made it easier for people with disabilities to claim protection under the ADA. In fact, JFS’s rescission of the job offer demonstrated that Cannon had a substantial impairment in the major life activity of lifting—or at least that JFS believed Cannon had a substantial impairment in the major life activity of lifting.

Because it was not clear whether Cannon could safely climb a ladder or drive a vehicle (due to his painkiller prescription), the 5th Circuit ruled that the case could not be dismissed before trial. The court further noted that Cannon could also pursue a claim that JFS did not fully engage in the reasonable accommodation process, as required by the ADA. Because JFS decided not to hire Cannon before it fully considered his actual medical limitations, Cannon could proceed to trial on a claim that JFS did not comply with its reasonable accommodation obligations.

Cannon v. Jacobs Field Services Inc., 5th Cir., No. 15-20127 (Jan. 13, 2016).

Professional Pointer: The ADA Amendments Act of 2008 was designed to expand the ADA’s protections to cover most individuals who have significant medical limitations or are perceived as having significant medical limitations. This does not mean that all individuals with disabilities are entitled to a position or an accommodation under the ADA. Rather, employers must interact with the individual and consider the extent of his or her limitations, the job requirements, and the feasibility of available options before denying an accommodation or rescinding a job offer.

Jeffrey L. Rhodes is an attorney with Doumar Martin PLLC in Arlington, Va.


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