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Monday, June 20, 2011

Was She ‘Regarded as’ Disabled? : article : June 20, 2011

A Chicago meat-packing employee was advised to have a hip replaced, and she was out on leave for 12 weeks following the operation. But when her doctor released her to return to work, he asserted that she had a number of major restrictions: She was permanently barred from heavy lifting, squatting, crawling, or climbing. The plant fired her, and she sued.

What happened.
“Kozak” had been a general laborer for Rose Packing Co. for almost 10 years when her hip was replaced. The plant employs several hundred general laborers, all whom are members of United Food and Commercial Workers International and all working to bone, cure, process, smoke, pack, cook, and ship meat products. And, the union contract requires that general laborers rotate through all those tasks as they work. Rose says there are two reasons for the rotations: They allow the plant to accomplish different tasks at different times, and they reduce workers’ repetitive motion injuries.

Hired in 1996, Kozak had her hip replacement in early December 2005. When she was ready to return at the end of February, her doctor gave Rose a list of permanent restrictions. Told that she’d be fired if he imposed those limits, he revised them—but not enough to permit Kozak to perform the necessary task rotations. Rose fired her, and she sued for violation of the Americans with Disabilities Act (ADA). A judge in federal district court ruled entirely in favor of Rose, and Kozak appealed to the 7th Circuit, which covers Illinois, Indiana, and Wisconsin.

What the court said.
Kozak argued that Rose could have offered her reasonable accommodation, perhaps by eliminating a few of the tasks in the rotation for her, since she could do what she and her attorney considered to be the essential functions of a general laborer. Appellate judges considered two questions: Did Kozak have a “record of” a disability, and was she “regarded as” having a disability?

Judges decided that because she had worked steadily through earlier hip problems, she did not have a record of disability. Further, they said, Rose didn’t indicate that it regarded her as being unable to perform a broad range of jobs—just the general laborer job. So Kozak lost her case again. Kotwica v. Rose Packing, U.S. Court of Appeals for the 7th Circuit, No. 09-3640 (2011).

Point to remember:
The ADA was amended effective January 1, 2009. The amendments changed the definition of “regarded as” disabled, and Kozak might have prevailed had she been fired after that date. Also, Rose Packing has since changed its return-to-work policy to say it will try to accommodate anyone recovering from surgery or an injury.

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