State News : New Jersey

Michael Cannon applied for a job with Jacobs Field Services (hereinafter JFS) as a field engineer for a Colorado mining site. The company made him a job offer conditioned on his passing a post-offer medical examination.  During the post-offer exam, Cannon revealed to the doctor that he had an inoperable rotator cuff tear and had taken Ultram (a brand name version of the opioid Tramadol).  He said he still had the prescription but was no longer taking it. In fact, he passed the drug test portion of the post-offer examination.  The doctor cleared Cannon provided that JFS offered accommodations of no driving company vehicles, no lifting, pushing, or pulling more than 10 pounds and no working with his hands above shoulder level.

Less than two hours after receiving the doctor’s report, the company’s technical operations officer at the mining project wrote that the job offer should be rescinded because a field engineer must be capable of driving and lifting.  Ladder climbing was an essential function of the job.  Further, the job site was located in the mountains with rocky terrain over several miles, so driving was essential.  This decision to revoke the job offer was not communicated immediately to Cannon.  A Human Resources Manager later contacted Cannon, expressing concerns about his ability to perform the essential functions of the job.  Cannon offered to contact the Occupational Health Department to address concerns that he was still taking Ultram (he said he was not).  He also brought a note from his doctor stating that he could climb ladders by maintaining three point contact with either arm.

Two days after the examination, Cannon submitted the doctor’s note to JFS.  But the company revoked his job offer and never discussed the doctor’s notes he submitted.  Cannon still tried to prove JFS was making a mistake by offering a video of him climbing a ladder while maintaining three point contact, using his non-injured shoulder.  When all efforts failed, he contacted the EEOC, which concluded that JFS had engaged in disability discrimination.  Cannon then sued under the ADA.

At the federal court level, the company prevailed.  The district court found that Cannon’s rotator cuff injury did not render him disabled under the ADA.  Cannon then appealed to the Fifth Circuit Court of Appeals.  The Appeals Court observed that the ADA Amendments Act made it easier for people with disabilities to obtain coverage under the ADA.  “There is ample evidence to support a conclusion that Cannon’s injury qualifies as a disability under the more relaxed standard.  Although the district court concluded otherwise, the ADA includes ‘lifting’ in its list of major life activities.”  The Court said that Cannon could prove that he was substantially limited in lifting because he was unable to lift his right arm above his shoulder and had considerable difficulty lifting, pushing, or pulling objects with his right arm.

But even if he had a substantial limitation in lifting, Cannon still had to prove that he could perform the essential functions of the job.  Cannon insisted that he did not need any reasonable accommodation at all.  He said that by using his left arm effectively, he compensates for his right arm limitations. He also said he was not taking Ultram and would therefore not be in violation of the company’s policy that “employees who are taking narcotics are not permitted to operate company vehicles.” Cannon’s doctor said that his patient was still being weaned off Ultram, while Cannon asserted he was off the drug and noted that he passed the company drug test.  He still had the prescription but was not using it.  The Court said that the jury should decide whether Cannon was or was not still taking Ultram.

As for the climbing aspect of the job, Cannon agreed with JFS that this was an essential function but insisted that the video he presented to the company showing him climbing was proof he could manage it by use of his left arm in keeping three point contact with the ladder.  Cannon’s doctor submitted a note stating that his patient could climb despite the shoulder injury.  The company argued that in the video Cannon raised his injured right arm above his shoulder in violation of his doctor’s orders. JFS argued that the ADA does not require an employer to permit an employee to perform a job function that the employee’s doctor says is forbidden.  The Court felt that there was enough evidence to go to a jury on the question of whether Cannon could perform the essential job function of climbing a ladder.  The Court was somewhat critical of the company in stating that the company could have questioned Cannon or his doctor at the time he submitted the video or asked Cannon to actually demonstrate that he could climb a ladder.

Perhaps most importantly, the Fifth Circuit Court of Appeals said that the company failed to engage in the interactive process that the ADA requires.  The Court seemed to feel that the company jumped the gun in deciding within two hours that the applicant could not perform the essential job functions without engaging in any interactive dialogue.

The case drives home a number of points for practitioners.  For workers’ compensation practitioners it is important to reflect that shoulder injuries, particularly rotator cuff tears, abound in all states.  Employers should consider that under the ADA Amendments Act, coverage can easily be found for such shoulder conditions with the expanded definition of disability. Secondly, the post-offer process is not exempt from the requirement that employers engage in an interactive dialogue with applicants who may have covered disabilities.  Employers should err on the safe side and consider that the medical condition may be covered under the ADA and then engage in the interactive dialogue.

This case may be found at Cannon v. Jacobs Field Services, 813 F.3d 586, U.S. App. LEXIS 531, (January 13, 2016).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.