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Employer Didn't Violate ADA for Firing Man With Flesh-Eating Bacteria

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By William Vogeler, Esq. on February 12, 2019 6:00 AM

Gary Brunckhorst could not go back to work because a bacteria was literally eating him alive.

The disease practically killed him, and after three life-saving surgeries and five months of hospitalization, he still couldn't go back to work. He finally recovered enough to work again, but by then his employer said the job had been eliminated.

He sued for disability discrimination in Brunckhorst v. City of Oak Park Heights. Like the disease, however, the appeals court said it wasn't the employer's fault.

Flesh-Eating Bacteria

Brunckhorst had worked as an accountant for the City of Oak Park Heights for 15 years when he got sick. He contracted Fournier's gangrenous necrotizing fasciitis -- a rare disease commonly known as "flesh-eating" bacteria -- in early 2014.

When he finally returned home from treatment, the city granted him extended leaves of absence while he continued to recuperate. However, the disease left Brunckhorst with long-term injuries.

After more than a year, he received a medical clearance to return to work. He wanted to work from home doing his old job, but the city had eliminated it by assigning duties to other workers. The city offered him another job, but he didn't want it.

Brunckhorst sued under the Americans With Disabilities Act. A trial judge dismissed, so he took it to the U.S. Eighth Circuit Court of Appeals.

"Enforcement Guidance"

He said the city should have accommodated his request to work from home. He cited an Equal Employment Opportunity Commission (EEOC) "Enforcement Guidance" document that said an employer is required to hold open the original position of an employee that has been granted leave as a reasonable accommodation.

However, the appeals panel said, the EEOC document was not binding authority. Plus, the panel said Brunckhorst's medical release did not say he had to work from home.

"We have held that an employer is not required to accommodate an employee based on the employee's preference," they said.

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