When addressing the issues of a person’s ability to perform a job or the potential need for accommodation, don’t forget to take into account work the individual has previously performed. Sometimes that can be every bit as important as the results of a medical examination.

Temporary work at Bama

Arnold Iselin worked for Prime Industrial Recruiters, Inc., a temporary employment agency. Beginning on January 7, 2015, Prime assigned Iselin to work for The Bama Companies as a general production worker. While he was assigned to its production facility, Bama controlled Iselin’s work assignments and job duties.

According to Iselin, Prime and Bama were both aware he was disabled – that he suffered from a torn rotator cuff and a “back problem.” While working at Bama, Iselin claimed the company had on occasion made accommodations for his physical limitations. For example, in April 2015 Bama moved Iselin to another position because his initial assignment “was too hard on his back.”

Job offer and medical exam

After five months, Bama offered Iselin a full-time position as a regular employee, provided he successfully completed its physical demand assessment. When he failed to pass the assessment, Bama withdrew its offer of the full-time job and terminated his temporary assignment at its production facility through Prime. Iselin filed a lawsuit in Tulsa’s federal court accusing Bama of discriminatory termination and discriminatory failure-to-hire in violation of the Americans with Disabilities Act (ADA).

Essential functions and medical exams under the ADA

Under the ADA, employers are prohibited from discriminating against employees based on their disabilities. Additionally, employers are required to reasonably accommodate qualified individuals, so long as an accommodation does not cause the employer an undue hardship. A qualified individual is an employee or applicant who is capable of performing the essential functions of a job, with or without reasonable accommodation. When deciding whether a particular task is an “essential function,” a number of considerations may come into play, including:

• What the employer considers an essential duty;
• What duties are listed in a position’s job description;
• What duties are listed for a position in a union contract;
• The amount of time spent by employees on a particular task; and
• What tasks have been performed by current or prior employees holding the same position

To assist in determining whether a prospective employee is qualified, the ADA permits employers to require applicants to take a medical exam after an offer of employment has been made, but prior to them beginning active employment. The pre-employment medical examination should be required of all entering employees hired for the same position and must be aimed at gauging an individual’s capabilities, vis-à-vis the duties associated with the position for which they have been conditionally hired.

The medical exam versus what Iselin had done

One of Bama’s primary defenses to Iselin’s ADA claims rested on its physical demand assessment. From the employer’s standpoint, Iselin’s failure to pass the assessment established he could not perform the essential functions of the job and meant he was not qualified to be hired as regular employee in the position of a general production worker. Thus, the employer argued it acted correctly when it rescinded its conditional offer of regular employment to Iselin and terminated his temporary assignment with Bama thru Prime.

In response, Iselin claimed that he had carried out all the tasks that he was asked to perform in the course of the assessment. More significantly, Iselin pointed out that he had been successfully performing the general production worker job for five months. Iselin argued this established his ability to perform the job’s essential functions and that he was a qualified individual.

Ultimately, a jury will determine whether Bama’s actions towards Iselin violated the ADA. However, the federal appeals court agreed that the five months he spent working as temporary employee supported Iselin’s contention he was a qualified individual for purposes of being hired by Bama as a general production worker.

Reality check

It is entirely appropriate for an employer to require prospective employees to pass a medical exam demonstrating their capability of performing a job after they have been conditionally offered a position. That is particularly sensible when the job is physically demanding. But don’t ignore what tasks or duties an individual has been actually performing when making decisions about a person’s qualifications or the need for accommodation. Both sources of information – a medical exam and someone’s actual work – should be considered.

Iselin v. The Bama Companies, Case No. 16-5132 (10th Cir. 5/26/17)