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A Disabled Employee Does Not Decide What is Essential for the Job

On Behalf of | Mar 22, 2022 | Employment Law

The New Hampshire Supreme Court on December 23, 2021  in the case of Patricia Crowe v. Appalachian Stitching Company, LLC, reaffirmed for both employers and employees alike that under New Hampshire and federal law, the disabled employee’s explanation of what he/she needs to do in order to perform the  job does not establish what are the actual essential functions of the job.  In this particular case, Ms. Crowe claimed her employer violated the American With Disabilities Act (“ADA”) and New Hampshire employment discrimination law, RSA 354-A, by refusing to accommodate her sciatica.  The employer filed for summary judgment stating there were not triable fact issues and that the employer should win without a trial, which was granted, and the New Hampshire Supreme Court agreed with the trial court that Ms. Crowe did not set forth sufficient facts for the case to go to trial. The courts in reviewing the New Hampshire disability discrimination law of RSA 354-A look for guidance from the cases analyzing the ADA.

Ms. Crowe had a non-work related back pain in which she went to the emergency room and thereafter sought medical treatment.  Since her back pain was not work related, she was not afforded any protection under the Worker’s Compensation Law.  Further, her employer had less than 50 employees so there was no question of whether she was afforded an unpaid leave of absence due to her medical condition under the Family Medical Leave Act (“FMLA”).  Therefore, Ms. Crowe relied on disability discrimination laws that require an employer to reasonably accommodate a disability so that an employee can perform the essential functions of the job.  For example, if an employee is in a wheelchair and the workstation table is based upon a person standing at it, a reasonable accommodation may be to lower the workstation table so that the employee can perform his/her tasks while at the workstation in the wheelchair.  In this case, Appalachian hired her as an assembler which had a job description that stated the employee must have the ability to bend, lift, and turn freely.  Ms. Crowe stated she did not believe she needed to bend, lift, and turn freely in order to perform her job.  The Court noted that in determining whether or not a job function is essential it looks to whether an employer actually requires all employees in this particular position to perform the alleged essential function.  The personal, specific experience of the disabled employee alone is of no consequence in the essential job function inquiry.  Instead the disabled employee must produce competent evidence, other than self-serving testimony, that shows what are the essential job functions.  In this case, the employer presented the job description as well as testimony from its general manager and floor supervisor to support the contentions that the ability to bend, lift, and turn freely were essential job functions.  Ms. Crowe presented no evidence other than her own testimony that she did not need to bend, lift, or stoop on the job.  Therefore, the New Hampshire Supreme Court opined that the trial court correctly concluded that Ms. Crowe did not create a genuine issue of material fact regarding the functions of an assembler at the company.

The Court noted that a request for a medical leave of absence can, in some circumstances, require an employer to granted a leave as a  reasonable accommodation under the ADA, however, Ms. Crowe’s doctor’s inquiry about the available of FMLA was not such a request.  In other words, had Ms. Crowe requested a few additional days off to have her back get better, if that was feasible given her sciatica, the Court may have determined such a limited medical leave was a reasonable accommodation under the ADA even though she was not otherwise covered under the FMLA.  If such a request had been made a further inquiry would have likely been made as to whether or not Ms. Crowe, with her sciatica, would after a chance to rest at home be able to come back to work and bend, lift, and turn freely at the job.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf.  Attorney Marr is licensed and practices in both New Hampshire and Massachusetts.  Attorney Marr can be reached at [email protected].