Utah Employment Law Letter - February 2013: Adjuster’s claims based on discharge after giving FMLA notice fail

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Does an employee engage in protected activity under the Family and Medical Leave Act (FMLA) by notifying his employer of his plans to take FMLA leave, or must he actually take FMLA leave? If an employer accommodates an employee’s disability for a substantial period of time, does the Americans with Disabilities Act (ADA) prevent it from later firing him when he can’t perform the essential functions of his job? How can employers show that the ability to perform certain tasks is essential for a given job? Find the answers to those questions and more in the following case.

‘High, precarious places’

Scott Wehrley worked as a field claim adjuster for American Family Mutual Insurance Company (AFMIC). His position included on-site property inspections. The job description stated that the job required “the ability to work in high, precarious places between 1 and 33% of the time,” “the ability to climb or balance between 1 and 33% of the time,” and “the ability to stoop, kneel, crouch or crawl between 1 and 33% of the time.” In the unit in which Wehrley worked, approximately 57% of the claims were roof-related....

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