SUPREME COURT REFUSES TO ACCEPT CASE TO DETERMINE IF DRIVING UNDER THE ADA IS NOT A MAJOR LIFE ACTIVITY
The United States Supreme Court recently refused to hear the case of Kellogg v. Energy Safety Services, Inc. which dealt with the question of whether driving is a major life activity under the ADA. Kellogg worked as a safety technician for Energy Safety Services, and was required to drive a company vehicle to numerous work sites. Kellogg was diagnosed with epilepsy, and although she was cleared to continue working, her doctor prohibited her from driving. Her employer advised her in writing that she worked in a "safety-sensitive" position, and she could not return to work without a full release from her doctor. Kellogg sued under the ADA, and the jury found in her favor, awarding nearly $150,000 in compensatory damages and back pay. On appeal, the 10th Circuit reversed the trial court, finding that driving is not a major life activity under the ADA. The Supreme Court denied certiorari on Energy Safety Services application. The following circuits have held that driving is not a major life activity under the ADA: 2nd, 3rd, 4th, 7th, 10th and 11th. The 11th Circuit covers Alabama.
Practice Pointer. Although all these cases were decided under the old ADA, it must be noted that driving was not listed as a major life activity in the EEOC regulations under the old ADA, and it is not listed in the revised list of major activities under the ADA Amendments Act of 2008. I anticipate as new cases wind their way through the courts under the ADA Amendments Act of 2008, this issue will continue to be addressed.
