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Employees employed for full-time jobs must be capable of working full time ruled the United States Court of Appeals for the Seventh Circuit in DeVito v. Chicago Park Dist., 270 F.3d 532 (7^th Cir. 2001).  In a claim brought under the Americans with Disabilities Act (ADA) the court found the ADA does not protect an employee who had not worked full time for 13 years and was unable to maintain a full-time job. 

The employee, a park laborer, hurt his back in 1979 and was unable to return to work.  In 1985 under a “light duty” program initiated by his employer, he was given the job of answering telephones.  He had authorization to leave work whenever he felt pain or stress.  The employee typically worked two to three hours but was paid for a full eight-hour day.  After four years of light duty work, the employee was observed on videotape twisting, climbing, etc., and was fired by his employer.  During his internal appeal hearing, the employee testified that he was ready, willing and able to return to any position that was not as demanding as his former position as a laborer.  His appeal was rejected and the decision to terminate was upheld. 

The employee then commenced an action in United States District Court for the Northern District of Illinois.  In a bench trial, the judge found that since the employee was not capable of working full time even with an accommodation, he was not protected by the ADA.  The Court of Appeals affirmed the decision relying however on a “more fundamental objection to plaintiff’s claim” – the doctrine of estoppel.  Applying that doctrine, the court ruled even if plaintiff’s claim to be totally disabled was initially false (which it was) he was forbidden  from denying it to his unsuspecting employer to whom the representation was made.   Employers should keep this principal in mind when dealing with ADA issues including  light duty assignments, return to full-time work and reasonable accommodations.  Brody and Associates has counseled employers on these and other ADA issues.