Employer’s 1 percent rule cost them more than $25 million in ADA case

In January, Mark, a railroad conductor, notified the company that he had dislocated his shoulder at home. The company had a rule that if an employee had a 1 percent per year chance of sudden incapacitation, the employee couldn’t work in certain positions, such as a conductor, as it was seen as a safety-sensitive job.

Shoulder dislocations fell under the 1 percent rule, so the employer didn’t allow Mark back to work as a conductor without restrictions, regardless of the extent of the injury.

Mark’s doctor cleared him to return to work in April. While waiting for the company to allow him back, he did other work, including physical labor, much of which mimicked his conductor’s tasks.

In May, a company doctor told Mark that the company determined he was medically qualified, but was subject to permanent restrictions under the 1 percent rule. The company didn’t offer to have Mark undergo a functional capacity test or physical examination. Instead, the company told Mark that the main concern was the future instability of his shoulder.

In October, the company finalized its decision not to return Mark.

Mark sued, arguing that the employer violated the federal Americans with Disabilities Act (ADA) when it fired him under the 1 percent rule.

The court agreed with Mark.

According to the court, the company made several errors:

• No one had any information about where the 1 percent rule could be found in the official company policy.
• The company doctor placed permanent work restrictions regardless of an employee’s individual capabilities.
• The company allegedly had no scientific or medical basis for applying the 1 percent rule to terminate Mark.
• The company didn’t try to discover how successful Mark’s rehabilitation had been. If it had concerns, it could have brought Mark to the train yard for a physical function test.
• The company didn’t contact any of Mark’s treating doctors with its concerns.
• It used a uniform blanket policy to screen out all employees who had ever had an anterior shoulder dislocation from working as a trainperson.

The employer would have fared better if it had considered:

• The medical facts about Mark’s particular condition,
• The amount of rehabilitation Mark had completed,
• Mark’s physical success with the rehabilitation, and
• If they’d performed a functional capacity evaluation to see if Mark was fit and able to perform the physical duties of his job.

In the end, the “bill” for the employer’s missteps cost them more than $25 million.