Massachusetts Employment Law Letter

Disabled or not? You be the judge

With so many people talking about heightened protection for employees under the ADA Amendments Act of 2008 (“ADAAA”), it is easy to forget that the Massachusetts state anti-discrimination statute (“Chapter 151B”) also protects employees against disability-related discrimination.  The question for employers is whether Massachusetts courts will look to the expansive coverage provided by the ADAAA for guidance on state law claims.  A recent decision from the Massachusetts Appeals Court may shed some light on this issue.

Working overtime is painful

Michael O’Brien worked as an engineer for the Massachusetts Institute of Technology (“MIT”).  Given the nature of MIT operations, all engineers were expected to work overtime.  O’Brien, however, had difficulty working overtime because of back and leg pain.  He claimed that the pain worsened when he had to stand for prolonged periods of time.  The pain also regularly disrupted his sleep.  At times, he only got one or two hours of sleep a night.  According to O’Brien, this could go on for days and even weeks at a time.

O’Brien eventually requested that he not be assigned overtime work because of his condition.  Apparently, his accommodation request was not well received.  One of his supervisors allegedly commented to another manager that “he could not wait until the day he could fire O’Brien.”  Another supervisor sent an internal e-mail strongly opposing an accommodation for O’Brien on the ground that it would set a precedent.  The e-mail stated, “I have no interest whatever in accommodating [O’Brien] at all.”

Reprimand and termination

Following his accommodation request, O’Brien received a number of written and verbal disciplinary warnings, and even a suspension, for a variety of infractions.  The violations included insubordination, failing to complete assignments, leaving his post without proper coverage, and abuse of MIT’s sick leave policy.  Prior to requesting his accommodation, O’Brien had only been disciplined once in eight years.

O’Brien’s disciplinary problems peaked one afternoon when he abandoned his job post to attend to personal issues.  He was scheduled to work a twelve-hour shift that day, and he left the facility to retrieve his truck in a nearby lot and park it closer to the job site.  He washed the truck — and a kayak attached to the truck’s roof — when he was finished moving his truck, and then came back into the facility.  He left on a two-week vacation at the end of the day.

O’Brien was subsequently terminated for “unacceptable” conduct in connection with abandoning his post and other disciplinary concerns.  However, a co-worker stated that it was common practice to leave the facility during the day because the equipment did not need constant monitoring.  The co-worker also was not aware of any other disciplined MIT engineer for similar behavior during his 25 years.

Lawsuit and appeal

O’Brien filed a state lawsuit claiming his handicap and accommodation requests were the real reasons he was fired.  MIT argued that O’Brien could not claim protection under Chapter 151B because he was not handicapped.  To establish that he was handicapped within the meaning of Massachusetts antidiscrimination law, O’Brien had to show that:  (1) his condition constituted a mental or physical impairment; and (2) the impairment substantially limited a major life activity.  MIT asked the court to dismiss O’Brien’s case before trial, contending that O’Brien’s condition failed to show that he had an impairment that substantially limited a major life activity.  The Superior Court judge agreed, and granted MIT’s motion.

O’Brien appealed the decision to the Massachusetts Appeals Court.  Unfortunately for MIT, the Appeals Court reversed the lower court decision.  The Appeals Court disagreed that O’Brien could not demonstrate that his condition substantially impaired a major life activity.  According to the court, O’Brien’s condition substantially limited him in two major life activities:  sleeping and working:  he often went several days or even weeks with only a few hours of unbroken sleep.  O’Brien’s doctor also noted that his leg pain was the cause of his disrupted sleep and was likely to require him to miss work intermittently.

As for working, the court focused on the fact that O’Brien’s condition allegedly meant that he was unable to work overtime.  It was, therefore, possible that a jury could find that his ability to work was also substantially limited because he couldn’t work overtime.  Under Massachusetts law, a limitation on work is substantially limiting if it prevents or significantly restricts an employee from performing a broad range of jobs in various classes.  Due to the fact that a broad range of jobs in Massachusetts require overtime, it was conceivable that O’Brien’s ability to work was substantially limited because he could not work overtime.  Ultimately, the court concluded that this case should be decided by a jury.  The case is O’Brien v. MIT (Mass. Appeals Court 2012).

Bottom line

As we have discussed in the past, the ADAAA directs courts to read the definition of a disability broadly in favor of extremely expansive coverage.  Many federal courts have followed suit.  In one case, a court refused to dismiss a case involving an employee who suffered a Transient Ischemic Attack, also known as a “mini-stroke” or “warning stroke.”  The court noted that the impairment only required two days of hospitalization and a few weeks of recovery.  Even so, it could not reach the conclusion that the employee was not disabled under the ADAAA.  In another ADAAA case, an employee who experienced blackouts and confusion because she was taking certain medication was allowed to bring her disability discrimination case to a jury.

It remains to be seen whether Massachusetts courts will read Chapter 151B as broadly as federal courts seem to be interpreting the ADA.  In this case, the Appeals Court seemed to apply Chapter 151B in relatively broad fashion when it concluded that an employee who had difficulty sleeping and working overtime may have been disabled.  Either way, disability/leave related requests can be some of the most difficult issues facing HR professionals.  Contact labor and employment counsel when these thorny questions arise.

Article By: John S. Gannon, Esq.
Reprinted from the December 2012 issue of the Massachusetts Employment Law Letter.

John Gannon is an Associate at the firm of Skoler, Abbott & Presser, P.C.  John can be reached at (413) 737-4753 or jgannon@skoler-abbott.com.