May 12, 2014

A recent decision by the Third Circuit Court of Appeals supports employers in reducing their litigation exposure when they have properly crafted and enforced safety policies.  In Coleman v. Pennsylvania State Police, No. 13-3255, 2014 WL 1064379 (3d Cir. Mar. 20, 2014), the court affirmed a ruling in favor of the Pennsylvania State Police (“PSP”) against disability discrimination and other claims by a probationary State Police Cadet. Prior to completing training, Coleman suffered a traumatic brain injury while off duty. Because he suffered seizures, the last in 2010, Coleman needed to work in a limited duty capacity. Under PSP policy, a Trooper, whether probationary or not, must be seizure free for 5 years in order to work full duty. Although Coleman’s commanding officer believed she could “more than accommodate” him for at least 5 years with limited duty assignments, the PSP recommended termination because Coleman “would not be able to resume full duty until August of 2015 at the earliest, and every subsequent seizure would re-start the five-year clock….”

The district court granted PSP’s motion for summary judgment, finding, among other things, that Coleman could not prove that he was otherwise qualified to perform the essential functions of a full status trooper.  On appeal, the Third Circuit affirmed, finding that, since Coleman never completed his required probationary training, he could not prove he was qualified to perform the essential functions of the job at the time of his dismissal. PSP had also shown that “the threat of a seizure is significant enough to constitute a ‘direct threat’ and that the PSP seizure policy is a justified response to that threat,” since its purpose is to protect the officers, their colleagues and the public from a significant risk of substantial harm.

Where safety is essential to their work, employers, including police departments and other public service employers, may implement policies that apply to all employees, whether full status or probationary, to ensure the safety of employees and others impacted. In order to reduce the risk of liability, employers should be sure that any workplace safety policies addressing employees’ health or medical conditions are in writing, distributed or otherwise communicated, and applied even-handedly.