Issues in Employment Law

March 2003

Under the Americans with Disabilities Act ("ADA"), employers must provide "reasonable accommodation" for employees that would allow them to perform their jobs. However, for jobs that require heavy lifting, certain accommodations are not deemed to be "reasonable."

In Peters v. City of Mauston (No. 02-1178), the plaintiff, a construction laborer, suffered two work-related injuries to his shoulders. After undergoing surgery and missing nine months of work he was terminated. His doctor wrote a report allowing him to return to work with restrictions of lifting no more than 30 pounds, repetitive shoveling, and overhead use of his left hand. When asked by his employer about what accommodations he would require, plaintiff made two requests: (1) getting help with the heaviest lifting, and (2) allowing him to return to work to "try and see" if he could perform the job. The plaintiff was subsequently terminated and he sued the city under the Rehabilitation Act. The Seventh Court of Appeals held that because heavy lifting was an essential part of the job and because the doctor limited plaintiff's lifting, these accommodation requests were not reasonable. The first was unreasonable because it required another person to perform an essential function of the plaintiff's job; the second was unreasonable because "[t]he employer is not obligated to allow the employee to try the job out in order to determine whether some yet-to-be requested accommodation may be needed. The fact that the doctor imposed lifting restrictions on the plaintiff for a job that required heavy lifting was fatal to his case.

Please consult with us about the reasonableness of any accommodations requested by or considered for employees with injuries or other limitations.

Employers need to be clear with their employees regarding the vesting of stock options.

When there is a dispute over whether an employee has stock options that have been vested, the employer must make clear with the employee what the status of the stock options is. It would also be advisable to document and send a written memo to the employee because if there is any ambiguity the issue will be a fact for a jury to decide. The lack of conditions for vesting does not alone render an option agreement so uncertain that a court cannot enforce it; the court may enforce the parts of the agreement that are indeed "certain."

In Alexander v. Codemasters Group Ltd. (Super. Ct. No. CV06406), an executive and his supervisor spoke about the issue of the vesting of the executive's stock options. Although both parties disputed what was said, the employer pointed to the fact that the employment contract was silent as to the conditions for stock options to vest. The California Fifth Appellate District Court said that this silence in the agreement was not enough to award summary judgment to the employer. The silence left a triable issue of fact. To avoid problems, employers need to be clear in the agreements when the stock options vest.