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The Third Circuit Court of Appeals recently sounded a cautionary note for employers seeking to improve the health and safety of their workplaces by requiring job rotations or modifying work stations. In Turner v. Hershey Chocolate USA, the court found that a modification to a workstation system which was designed to enhance safety and health overall could violate the American with Disabilities Act ("ADA") if the modification fails to accommodate employees with disabilities.

Janet Turner had been employed with Hershey since 1985. In 1999, she returned to work after a surgery with work restrictions and was assigned to a "light duty" position as an inspector. Hershey employed six people in these inspector positions, two at each of its three production lines. On two of the lines, the inspectors worked from a seated position; at the third, the inspectors stood. The seated positions were perceived as being less strenuous than those on the third line.

In 2001, Hershey learned that its inspectors were experiencing a relatively high level of repetitive stress injuries. Seeking to reduce the frequency of such injuries, Hershey instituted a rotation system. Each of the six inspectors rotated positions each hour, enabling them to work from both sitting and standing positions and to use both their left and right arms. Turner objected to the new rotation system and presented Hershey with a letter from her attorney requesting exemption from it. She also presented a new work restriction form from her physician with more severe work restrictions. Hershey declined to exempt Turner from the rotation. Turner, a union employee, applied for and received disability benefits. Near the end of her two-year leave, Turner filed suit against Hershey, claiming discrimination under the ADA for failing to accommodate her disability. The district court granted summary judgment in favor of Hershey, but the Third Circuit reversed that finding and remanded for further proceedings.

Considering the merits of Turner's claim, the court found that two questions of fact existed, precluding resolution on summary judgment. First the court considered whether the rotation system instituted by Hershey was an "essential function" of the inspector position. The court found that the fact that the rotation system was new, that it was not part of the collective bargaining agreement, that the written job description of inspector made no mention of the system, and that the rotation itself would consume very little of the workday weighed against a finding that the ability to rotate was an essential function of the inspector position. The court also considered whether exempting Turner from the rotation system was a "reasonable accommodation, as it would disrupt the rotation system which was helping prevent injury to other inspectors." However, the court determined that whether excluding Ms. Turner from the rotation would create a "direct threat" to employee safety (the applicable standard) was a question for the jury.