The United States Court of Appeals for the Eighth Circuit, which is based in St. Louis and has appellate jurisdiction over federal district courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, reversed a ruling from the United States District Court of Nebraska which granted class certification to a group of employees who alleged that an employer’s fitness-for-duty policy violated the Americans with Disabilities Act (ADA). The court determined that the claims of the class members did not satisfy Rule 23(b)(2)’s cohesiveness requirement, nor did they meet Rule 23(b)(3)’s predominance and superiority requirements.
Background
A large railroad corporation (employer), covering 23 states across the western two-thirds of the United States, employed individuals in a variety of at least 650 different job positions. The employer follows a fitness-for-duty policy to evaluate its employees. The employer defines “fitness for duty” as the medical and functional ability to safely perform a job, with or without reasonable accommodations, and meet medical standards established by regulatory agencies in accordance with federal and state laws. Depending on the position, employees are required to report certain events—such as heart attack, cardiac arrest, stroke, seizure, significant vision change, and eye surgery—so that the employer can determine the employee’s fitness for duty.
Based on the employer’s assessment of the employee’s risk for sudden incapacitation, the employer may require “functional work restrictions.” Functional work restrictions are considered restrictions that focus on particular work functions or tasks rather than whether a person is qualified or disqualified for a particular job. The employer’s acceptable risk for sudden incapacitation is no greater than a 1% annual occurrence rate. After assessing the functional work restrictions, the employer relies on supervisors, who are familiar with the particulars of the individual job, to determine whether an employee can perform the job with or without reasonable accommodation despite the restrictions.
In 2015, a former employee of the employer filed suit against the employer alleging that the employer violated the ADA when he was disqualified because of his epilepsy. In 2018, that former employee and other employees (collectively plaintiffs) moved to certify a class action arguing that the employer’s fitness-for-duty policy has led to the systematic removal of workers with disabilities.
The District Court granted the motion certifying a class action. The employer appealed the District Court’s decision to the Eighth Circuit Court of Appeals.
Appellate Court’s decision
The Eighth Circuit ultimately reversed the District Court’s decision certifying the class action under Rule 23(b)(2) and (b)(3). Rule 23(b)(2) requires that class claims are cohesive. Rule 23(b)(3) requires that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”
The Eighth Circuit explained that the ADA defines “discriminate against a qualified individual on the basis of disability” to include qualification standards, employment tests, or other selection criteria that tend to screen out an individual with a disability or a class of individuals with disabilities. If the employment test or other selection criteria is shown to be job-related for the position in question and is consistent with business necessity, then it is not discriminatory under the ADA.
Following this framework, the Eighth Circuit focused on the lack of cohesiveness amongst the class. The court reasoned that under the plain language of the ADA, the district court would not be able to determine whether the policy itself constituted a pattern or practice of discrimination without considering whether the policy is job-related for each of the over 650 positions in question. The Eighth Circuit determined that the separate medical conditions of each Plaintiff would require an individual analysis from the court as it related to each job position.
Further, the Eighth Circuit determined that the predominance question would require the court to make an individual determination related to business necessity. The court determined that this subsequent analysis would defeat both cohesiveness and predominance because of the rigorous analysis of each of the plaintiffs’ individual circumstances. The Eighth Circuit provided the example that the analysis for an accountant with a cardiomyopathy would not be the same for an engineer with a cardiomyopathy, and that the analysis for an engineer with a cardiomyopathy would not be the same as the analysis for an engineer with PTSD.
The Eighth Circuit was careful to note that a class bringing an ADA claim could be properly certified if it was brought by some number of employees from the same or similar position with the same or similar disabilities.
Takeaway
This decision is a positive one for employers. Employers should keep in mind, however, that the Eighth Circuit noted possible class action certification for a group of employees with similar job positions and similar disabilities. As a result, employers should carefully craft their fitness-for-duty policies to ensure that they do not impermissibly screen out certain disabilities or conditions, and that the tests or selection criteria are job related and are consistent with business necessity. In such an area, consultation with experts in the area and experienced legal counsel familiar with the issues and law can be especially helpful.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
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