FDNY Facing ADA Challenge By Desk Bound EMT

Today’s burning question: I am an EMT and hurt my wrist on the job in 1997. In 2001 after two surgeries I needed an accommodation and asked to be assigned to a job “that would not require large volume typing, lifting, or straining.” The department gave me a desk job but in 2010 they eliminated my position. Then when we could not agree on another position, they terminated me. Don’t they have to continue to accommodate my disability?

Answer: If your job is to work as an EMT on an ambulance, they probably do not have to continue to accommodate you with a light duty assignment. HOWEVER… there may be another question: is your job still an EMT??? Or have you been employed in that “light duty” position for so long that you now have a different set of essential functions to qualify for?

A female EMT has filed suit against FDNY claiming her termination in 2010 violated the Americans with Disabilities Act because the department failed to continue to accommodate her for a wrist injury that occurred back in 1997.

EMT Kimberly Perez was injured while caring for a patient in 1997. In 2001 she requested an accommodation on account of her disability and was reassigned to EMS dispatch. Later she was assigned to the Ambulance Call Report Unit, and in 2004 she was assigned to the Recruitment Unit.

In 2010 her Recruitment Unit position was eliminated. She was offered at least 9 other positions, each of which she claimed she could not perform. As a result she was terminated because she was “unable to perform the duties of her position … by reason of a service related medical condition”.

Perez filed suit on December 14, 2012 in US District Court for the Eastern District of New York claiming  she had been discriminated against on account of her disability. Here is a copy of the complaint. Perez v FDNY

As for the law…the Americans with Disabilities Act (ADA) and the new and improved Americans with Disabilities Act Amendments Act (ADAAA) protect employees with a disability who are qualified to perform the essential functions of a position. Under the ADAAA an employer is required to make a reasonable accommodation IF that accommodation would allow a disabled employee to successfully perform the essential functions of a job.

This is where Perez’s case starts to go sideways. Granting her a desk job for nine years does not appear to have helped her find her way back to an ambulance (ie. the long-term accommodation has not allowed her to be able to perform the essential functions of being an EMT for FDNY), so it is unlikely that the continuation of a desk job would be considered a “reasonable accommodation”. In order to be eligible for ADA protection an employee must be able to perform the essential functions of the job with (or without) the reasonable accommodation. Her insistence that she be accommodated by being placed in a light duty position would seem to contradict the very predicate she needs to demand a reasonable accommodation.

The ADA does not a guarantee a pay-check-for-life for a disabled employee who can no longer perform a job. A light duty assignment MAY BE a reasonable accommodation in some circumstances – but there is also a great deal of confusion over this issue. The bottom line is an employer does not have to create a new position to accommodate an employee with a disability.

But here is the trap for employers. By allowing long term light duty assignments an employer can inadvertently end up creating new positions with different essential functions… essential functions that are considerably more lenient than the requirements of the employee’s original position. Reading the complaint it does not appear that Perez is specifically alleging liability under this sort of theory but the complaint is drafted in fairly general terms that may be sufficient to use that theory if her original theory fails. To avoid this trap, employers need to think through the implications of light duty assignments, develop clear policies, and follow them!

The discussion of light duty as a reasonable accommodation under the ADAAA becomes even more complicated because of other laws that intersect, including the Family Medical Leave Act (FMLA), civil service laws, workers compensation laws, collective bargaining agreements, and even public employee pension laws. It can create a mind-boggling quagmire for employers, employees, unions and lawyers alike.

One final point about the Perez complaint from a legal perspective: the complaint does not allege that she is a qualified person with a disability who can perform the essential functions of the job. Without that predicate, the case cannot go far under the ADAAA. The complaint does allege violations of New York state and local laws – and perhaps those laws offer greater protection… but without a Federal cause of action the case may be looking at an early exit from Federal court.