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Employer Entitled to Determine Whether Amputated Foot Was Disability

Bernie Feltman applied for the Conductor Trainee position with BNSF. In his application, Mr. Feltman did not disclose that his right toes and part of his right foot had been amputated years ago. He received a conditional offer pending a pre-employment screening that included a medical questionnaire, physical examinations and drug screen. Again Mr. Feltman did not mention his amputation and he passed the medical screenings. BNSF hired him to be a Conductor Trainee. After receiving the offer, Mr. Feltman disclosed his foot amputation and advised BNSF that it in no way impeded his physical abilities. He had a prosthetic and was able to maintain a vigorously active lifestyle.

After learning of Mr. Feltman’s partially amputated foot, BNSF sought further information. He was asked to undergo further medical testing with its staff, which he did. He passed. Mr. Feltman was then asked to gather more information from an orthopedist surgeon or podiatrist as to his “current functional status, any recommended activity restrictions, treatment plan, and prognosis.” Mr. Feltman refused to undergo further medical testing, explaining that he had already been examined and could physically perform the job. BNSF told him that he could not be hired until the company was sure that he could perform the duties of Conductor Trainee safely.

Upon reviewing the case, a federal district court in Arkansas found that Mr. Feltman was not entitled to pursue an Americans with Disabilities claim. He was not “disabled” within the meaning of the statute because his foot, by his own admission, did not limit any of his major life activities. While BNSF could have “regarded” him as disabled, Mr. Feltman was unable show that it fired him because of that disability. BNSF fired him because he failed to complete the medical process that would show he could safely perform the essential functions of the position.