Legal Question in Disability Law in Virginia

I live in Virginia. I have worked for Tetra Pak Tubex, Inc. for 25 years on first shift. I was diagnosed with breast cancer and had surgery in Nov. 2013, I have been out on short term disability and long term disability until June 2014. I came back to work in June with a lite duty note from my doctor. I am still getting treated by my doctor to get my bones stronger, after tests they have done they said it was necessary. The company has moved a mechanic to 3rd shift because he was the last hired mechanic to be hired. They told me that I was to go to 3rd shift so I told this to my doctor and my doctor wrote a note that I was not to change shifts while I was in his care, and that I do want to work. The HR department called me yesterday and told me that the company is putting me back on long term disability until I can come back and work 3rd shift and that my position on 1st shift has been filled and they can not accommodate me on 1st anymore. Can a company put me on long term disability or does a doctor have to have a say it that? It is like that the company is punishing me for not being at work because I was out for having cancer. Is there any legal actions I can take against this company on what they are trying to do to me? They have asked me before my surgery if I would want to go to 3rd shift to help out for about a month but I told them it was not possible due to I am a single mother with 2 children at home and can not leave them all night by there selves. Thank you for your help..

Asked on 7/24/14, 6:04 am

1 Answer from Attorneys

Stephen B. Pershing Stephen B. Pershing, Esq.

Hi there--this is a fair & valid question, but the answer is not so straightforward--because the law isn't. ;)

Basically what we want is for the company to move somebody else to a less desirable shift so you can return to the shift you had for so long, or else create another 1st shift position for you to fill, like the one you had, and at the same salary. The question under the ADA is what accommodation to your disability is the least they must offer you.

The first question is what's an essential function of the job. Your employer will argue that willingness to work whatever shift they give you is an essential job function. That's a question of fact, and the job description is relevant, but courts often just take the employer's word for it even if the job description doesn't explicitly make take-the-shift-they-give-you an essential job function. (Grgh. ;) )

The next question is the role of seniority as a factor. The Supreme Court a decade ago said seniority systems generally trump ADA accommodations. U.S .Airways v. Barnett (U.S. Supreme Court, 2002). There's also a 1st Circuit nurse case from 1998, Laurin v Providence Hospital, saying no, a nurse with diabetes didn't have the right to a day shift as a reasonable accommodation to her blood glucose management challenges, because except for senior nurses everybody had to rotate. The court then took the employer's word that shift flexibility for non-senior workers was an essential job function, and that accommodating the plaintiff would force co-workers to cover more 2d and 3d shifts.

But maybe you're senior to the person who replaced you, or are otherwise to be preferred for 1st shift under a seniority policy, so maybe you have that in your favor. Again, a question of fact.

Also important are court decisions about whether it's an ADA violation to reduce or deprive workers of seniority just because they go out on medical or disability leave. How that gets treated under the ADA will depend on whether the court wants to recognize such a policy as part of the employer's established seniority system under Barnett. The Family and Medical Leave Act (FMLA) may give you some protection, at least for the 12-week period of medical leave that it gives workers, but perhaps not for periods after that, and the ADA case law would have to be researched.

The employer would probably also argue, from that past temporary-3d-shift conversation you mention, that you're seeking a first-shift assignment as an accommodation of your family status, not your disability, so the ADA doesn't require them to do anything. We say the doctor's note should suffice, but in that nurse case, even though the doctor said the plaintiff had to have 1st shift permanently, the court ruled in the employer's favor.

Other issues: What does the seniority system provide? Wheter or not because of seniority system factors, how disruptive to the overall work schedule would it be to give you your preferred shift back? What job performance issues could they try to raise about you specifically?

Last but not least is timing. We've got only six months after their allegedly discriminatory act to contest it.

I'd be happy to consult with you on this. We'd want to look at both the facts and the law, see what your options are and explain them to you. Our consult fees are very low--$300 for as long as it takes--and we can meet in person at my Washington office and brainstorm, do a little legal research right there, and talk it through. Let me know if this appeals to you. --Steve Pershing.

Stephen B. Pershing, Esq.

The Chavers Firm, LLC

1250 24th St. N.W., Ste. 300

Washington DC 20037

(202) 467-8324

[email protected]

(Admitted in Va. and D.C.)

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Answered on 7/24/14, 8:55 am

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