Excerpted from Arizona Employment Law Letter written by attorneys at the law firm of Ford & Harrison LLP

Q. We have an employee who works as an administrative assistant. She was recently in a car accident and injured her arm, hand, and wrist. Her main job duty is to transcribe documents. That often requires her to type for hours at a time. She also is responsible for taking handwritten notes during meetings. As a result of her injury, she has had to take Family and Medical Leave Act (FMLA) leave until she can regain her strength and return to do her job.

We have since received word from her doctor that she is ready to come back to work but with some conditions on how much she can type and write. The doctor imposed the following restrictions: (1) continuous keyboard use limited to 30 minutes per day, (2) continuous writing limited to five minutes per day, (3) intermittent keyboard use limited to 60 minutes per day, and (4) intermittent writing limited to 60 minutes per day.

Since the functions that the doctor has placed severe restrictions on represent roughly 95 percent of our assistant's work, he has effectively reduced her ability to work to about an hour or two a day. That simply doesn't work for us. I'm concerned about what to do now. If we fire her, it would be because her medical condition doesn't allow her to do the job she was hired to do. If we do that, are we violating the Americans with Disabilities Act (ADA)?


A This is the exact type of scenario that drives employers crazy. On the one hand, you have to determine whether she is so disabled that she can't perform the essential functions of her job with or without a reasonable accommodation. On the other hand, you have to determine whether she is disabled enough to be substantially limited in one or more major life activities. That becomes more complicated when the major life activity is working, which is what I think your scenario presents.

The first question to ask is, "Does she have an impairment that substantially limits her in one or more major life activities?" There are actually three parts to that question that you need to address:

1. Does she have a medical condition that can be considered an impairment?

2. Is there a major life activity involved?

3. Is she substantially limited in the major life activity?

Because the courts have pretty much made any medical condition or abnormality an impairment, she easily meets the first requirement. The next two elements (major life activity and whether she's substantially limited) may create problems.

If she tries to rely on the ability to continuously type or write as a major life activity, she will lose. Courts that have considered the issue have held that typing and similar activities aren't central to everyday life and therefore aren't major life activities. However, courts have universally recognized working as a major life activity, so you need to address whether she is substantially limited in that respect.

If she argues that she's substantially limited in the major life activity of working, you'll need to determine whether she's so substantially limited that she can't perform the essential function of her job, even with a reasonable accommodation. If that's the case, then you've got nothing left to do except to offer her another available position. Of course, before you do that, you'll need a little more information to determine if another accommodation (such as extra leave time beyond FMLA time) would allow her to come back and do her current job.

Assuming her restrictions are permanent (or at least long-term), I don't see how she can do the job for which she was hired. In that case, you will have exhausted all that is required of you under the ADA. On the other hand, given that she's really limited in only a couple of skills, I think you'd have a good argument that she's not substantially limited in the major life activity of working, in which case the ADA wouldn't even apply.

As you can see, ADA situations require a fairly subjective analysis. Thus, you should seek counsel from your employment attorney before taking action against an employee who might have ADA rights.



Attorney Justin Pierce answers your workplace questions "just in time." If you have a question you would like him to answer, send an e-mail to jpierce@fordharrison.com or call him directly at (602) 627-3505.

Copyright 2008 M. Lee Smith Publishers LLC. ARIZONA EMPLOYMENT LAW LETTER. ARIZONA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.