Excerpted from a JacksonLewis Blog by Jody Wilner Moran

What is an employer’s risk in terminating an employee who has suffered an injury or becomes disabled and no longer can perform the essential functions of the position? How can that risk be lowered?

The Seventh Circuit Court of Appeals recently addressed this issue in Conners v. Wilkie, a lawsuit brought by a licensed practical nurse who had worked at a healthcare center operated by the U.S. Department of Veterans Affairs. Unfortunately, five years after she was hired, Ms. Conners was hit by a car and suffered severe injuries that seriously impeded her ability to perform most of her nursing duties.

Her supervisor initially permitted her to retain her LPN position but radically reduced her responsibilities. After more than two years in that status, the VA concluded that she could not perform the essential duties of an LPN even with reasonable accommodations. The VA attempted to work with Ms. Conners on an acceptable reassignment, but those efforts failed. Over two years after her accident, the VA terminated Ms. Conners’ employment. She sued and lost on summary judgment. On appeal, she alleged that the agency violated her rights under the Rehabilitation Act by failing to accommodate her disability.

The Rehabilitation Act borrows the definition of a qualified individual definition from the Americans With Disabilities Act, which has a two-step inquiry: (1) does the plaintiff have the basic qualifications required for the position, such as educational prerequisites, employment experience, skills or licenses; and (2) can the plaintiff perform the essential functions of the job with or without reasonable accommodations.

To determine whether a job duty is an essential function of the position, courts consider the employer’s judgment, the employee’s written job description, the amount of time the employee spends performing the function, and the experiences of past and current workers.

Ms. Conners claimed that she was able to perform a reduced set of duties after the accident, which demonstrated that she was capable of performing the essential functions of her position. However, an employer need not create a new job or strip a current job of its principal duties to accommodate a disabled employee. Ms. Conners alleged that the VA failed to engage in the interactive process to identify reasonable accommodations for her disability. Because Ms. Conners was unable to prove that she was qualified to perform her LPN job with accommodations, any failure to engage in the interactive process was irrelevant.

While the VA prevailed in this lawsuit, the cost was considerable: extensive discovery, preparing and responding to cross-motions for summary judgment, and briefing an appeal. It is unfortunate and sad when an employee, because of an accident or disability, can no longer perform the essential functions of their position. It is fair to both the employee and the employer to address the employee’s new limitations as early as practicable to determine whether the employee can perform the essential functions of the position with reasonable accommodations.

Allowing an employee to self-limit duties and not perform an essential function of a position for an extended period of time may give the employee the expectation that they are performing the essential functions of the position. Setting employee expectations is often key to avoiding litigation.