EEOC advances failure-to-accommodate claim against hospital that fired nurse with lifting restrictions

By Marjorie Johnson, J.D.

Triable issues existed as to whether lifting was an essential function of a nurse’s job and whether a hospital acted unreasonably in denying her request to use the “buddy system” or assistive devices as a reasonable accommodation for her shoulder injury. Denying the employer’s motion for summary judgment on the EEOC’s failure-to-accommodate claim brought on the nurse’s behalf, a federal district court in Mississippi found that while the job description listed the lifting requirements, a safety manual and testimony by hospital staff indicated that nurses often received assistance when moving and lifting patients. Moreover, an internal email suggested that management never intended to accommodate her (EEOC v. Wesley Health System, LLC, November 14, 2018, Starrett, K.).

Discharged after injury. The nurse, who worked in the hospital’s Transitional Care Unit (TCU), took medical leave after she injured her shoulder. She was subsequently released to return with lifting restrictions. However, the hospital determined that she could not safely return to her position in the TCU since lifting and pushing patients was an “essential function” of her job. Though the hospital told her she could apply for any vacant position for which she was qualified, she was denied the position for which she applied and ultimately terminated.

Was lifting an essential function? The hospital first argued that the nurse was not qualified since she could not perform the essential functions of lifting or carrying at least 50 pounds or pushing up to 300 pounds. Relying upon the non-exhaustive list of factors set forth in the EEOC regulations, the court disagreed. Despite the job description, other evidence created a triable issue as to whether the lifting and pushing requirements were essential functions.

The job description required the nurse to “frequently” lift and carry 50 pounds or more and to push up to 300 pounds. However, the hospital’s safety guidelines stated that staff should “ask for assistance when the load is too large or too heavy,” seemingly anticipating that staff would seek and receive assistance when lifting patients. Additionally, both the nurse and other hospital personnel provided testimony indicating that TCU nurses always sought and received assistance in lifting patients, were not frequently required to lift more than 50 pounds, and could utilize devices that helped move and lift patients.

For instance, the nurse testified that TCU nurses never moved patients alone and “used the buddy system” since “you could injure the patient or you could injure yourself.” She also said there was always enough staff to get help and that she had never had to support the full weight of a patient on her own. Additionally, she described devices for lifting, moving, and/or transferring patients, such as chair lifts and bed lifts. And while she affirmed that she was sometimes required to lift and/or carry 50+ pounds, she could “call rapid response” for assistance in an emergency.

The nursing director testified that TCU nurses did not lift ambulatory patients but instead assisted them up. She also testified that TCU nurses always got help when moving patients. And while she stated that they should be able to move patients on their own, they were not required to frequently lift more than 50 pounds. The administrator of the TCU also confirmed that staff sometimes used a buddy system to transfer patients and confirmed the availability of assistive devices. However, he elaborated that the job was “very physically demanding” and that assistance “can’t be guaranteed.”

Reasonable accommodation offered? The court also rejected the hospital’s assertion that it offered the nurse a reasonable accommodation by assisting her in identifying and applying for an available position that did not require heavy lifting. The EEOC claimed that the hospital could have allowed her to lift with assistance and presented evidence indicating that nurses always sought and received assistance in lifting patients, were not frequently required to lift more than 50 pounds, and could use assistive devices. Thus, if it was the common practice in the TCU for nurses to receive assistance when lifting or moving patients, then the nurse’s proposal that she receive such assistance would have been a reasonable accommodation.

Email suggests lack of good faith. A jury could also reasonably infer that the hospital failed to engage in the interactive process in good faith. The nurse was injured in April and she took leave until July. On July 15, she attempted to return to work, but the hospital would not permit her to do so because of lifting restrictions in the latest report from the nurse’s doctor. It officially terminated her on August 8, after it rejected her application for another position. However, on June 24—three weeks before it even knew about her restrictions—the nursing director sent an email to the chief nursing officer stating that the HR director had approved replacing the nurse.

In particular, the email said that “we are doing it by the book” but “this is a nurse [we] would rather not have back. She says she is coming back with restrictions. That’s good because she can’t work with restrictions, so just FYI, her FMLA will be up next week, so just wanted you to be aware if you see TCU night nurse position come across. We really need it filled. Again, we are going to follow [HR’s] lead but want to be able to hire ASAP when all is settled.” And at her deposition, the director admitted that she did not want the nurse to return, testifying she was “a chronic complainer.” On this record, a jury could reasonably infer that the hospital never intended to accommodate the nurse and used her condition as an excuse to get rid of her.

Source:: http://www.employmentlawdaily.com/index.php/news/eeoc-advances-failure-to-accommodate-claim-against-hospital-that-fired-nurse-with-lifting-restrictions/