Employees May Take “Total Disability” And Seek Accommodation Too

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Just because a disabled employee takes long term disability benefits and certifies she is unable to work, doesn’t mean she can’t seek workplace accommodations. Smith v. Clark County School District, No. 11-17398 (9th Cir. Aug. 21, 2013). In this recent case, the plaintiff, an elementary school employee aggravated a pre-existing back condition, applied for medical leave and disability benefits. In connection with her applications, Smith certified that she was “incapacitated,” unable to perform any work until released by a doctor, and “totally disabled.” Smith subsequently claimed the school failed to accommodate her disability by not allowing her to transfer to a different, less physically demanding position. The trial court threw the case out because the plaintiff’s representations that she was totally disabled belied a required element of her ADA claim – that she was “qualified” for the job she sought. The Ninth Circuit Court of Appeals revived her claim. The court reasoned that FMLA and insurance disability claims were not inconsistent with the plaintiff’s ADA claim because the statements on her applications did not account for “reasonable accommodation,” her ability to work in the future, or her ability to perform another job.

You can’t always take employees at their word when they tell you – or even when their doctor tells you – that they cannot perform any work. You still have to engage in the ADA interactive process. Being “totally disabled” is only total disability until you come up with an alternative.