Safety and OSHA News

Can deaf worker safely drive forklift? Court weighs in

Here’s a tough call to make: A deaf employee drove forklifts safely on a daily basis for years. Then, a corporate policy said he could no longer do that for safety reasons. Do you bar him from operating forklifts? And what did a court have to say?

Nicholas Siewertsen, who is deaf, worked for Worthington Steel since 1999 in Delta, OH. Since 2001, he operated forklifts, overhead cranes and other motorized equipment on a weekly basis. From 2009 into January 2011, he operated forklifts and overhead cranes multiple times per day.

Siewertsen’s safety record was very good. He received multiple awards for outstanding safety performance, and records show his supervisors considered him a responsible, safety-conscious employee.

In July 2010, he was involved in one near-miss incident. Siewertsen didn’t stop to look both ways within the plant and came within a foot of being struck by a moving forklift.

In January 2011, a deaf employee at another Worthington plant requested to operate forklifts. The manager of that plant sought guidance from the owner of a company that provided forklift training. The advice was that deafness was too much to overcome in a busy plant, and deaf employees should not be allowed to operate forklifts.

On Jan. 18, 2011, Worthington’s corporate manager for health, safety and property sent an email to all facilities laying out the company policy that deaf employees shouldn’t operate forklifts.

Soon after that, the corporate safety manager, Delta plant HR manager and two other managers at the Delta plant met to determine whether the corporate policy should be applied to Siewertsen. They also considered whether any accommodations would allow Siewertsen to operate forklifts.

The managers concluded:

  • Operating forklifts at the Delta plant required sufficient hearing and audible communication skills
  • The corporate policy should apply at the Delta plant, and
  • There was no accommodation that would allow Siewertsen to operate forklifts safely.

The managers told Siewertsen about their decision. Specifically, they told him this was about safety and that he would continue to have meaningful work at the Worthington Delta plant.

Since he could no longer operate forklifts at the plant, his supervisors determined Siewertsen was eligible to perform only four jobs at the Delta facility. There was an immediate opening for one of the positions, and Worthington transferred him without reducing his pay.

Later in 2011, Siewertsen brought a two-count complaint under the Americans with Disabilities Act against Worthington, alleging the company:

  • discriminated against him on the basis of his disability with regards to discipline, promotions and denial of a reasonable accommodation when it barred him from using forklifts, cranes and other motorized equipment, and
  • limited him to only four positions at the plant, all of which involved only menial work, and made it difficult or impossible to obtain promotions.

Siewertsen and Worthington both sought summary judgment in the case.

Before we get to the judge’s decision, here are some more facts regarding the case:

  • Siewertsen has been deaf since birth. However, he can feel vibrations of certain noises and sounds. His primary form of communication is American Sign Language, although he can also read and write English.
  • Worthington had recertified Siewertsen as a forklift operator in August 2010.
  • Siewertsen communicated with his co-workers via notepad, computer word-processing programs, instant-messaging programs, hand gestures and limited speech.
  • Shippers at the Delta plant also had to communicate with drivers of about 100 trucks that entered the plant per shift. The drivers aren’t Worthington employees.
  • Because of inventory stacking, there are many line-of-sight obstructions at the plant.
  • Shippers used audible warning devices with operating forklifts and cranes: honking the horn on forklifts and using a buzzer to provide warnings about crane movement.
  • To compensate for his deafness, Siewertsen had a strict safety protocol he used each day. He inspected the forklift’s flashing lights and emergency brakes and honked the horn, verifying the horn was working by feeling its vibrations. He had a similar set of safety steps before operating a crane, including testing a buzzer for the crane. If his co-workers looked toward him, he knew the buzzer worked. If they didn’t turn toward him, he would ask a co-worker if the buzzer had sounded when he tested it.

Which side has the better case?

In filing for summary judgment, Siewertsen and Worthington both argued no reasonable jury could find for the other side on three issues:

  1. Worthington conducted an individualized inquiry in determining Siewertsen couldn’t perform the essential duties of two positions at the plant
  2. Hearing and the ability to communicate audibly are essential functions of those positions, and
  3. Siewertsen’s continued operation of forklifts and cranes constitutes a direct threat to his co-workers’ health and safety.

Ultimately, a judge of the U.S. District Court, Northern District Ohio, decided that neither side should receive summary judgment – there was enough evidence that a jury could rule either way in this case on all three issues.

However, the federal judge made no secret of his opinion that Siewertsen has the better case.

In his decision, the judge wrote that Siewertsen had provided “ample evidence” to show Worthington failed to conduct an individualized inquiry to determine if he could perform the essential duties of the job.

No one from the Delta plant asked Siewertsen about his past experiences operating forklifts before the company made its decision. Supervisors also didn’t speak to Siewertsen’s co-workers. The record also suggests managers at the plant didn’t know about the safety protocols Siewertsen used each day.

Thus, there was “considerable evidence the company failed to engage in an individualized determination,” the judge wrote.

“At the same time, there is sufficient evidence – though perhaps just barely – to support a reasonable finding that Worthington performed the required inquiry,” the judge wrote.

A jury could also reach different conclusions about whether the abilities to hear and communicate audibly are essential job functions, the judge said.

Worthington presented its forklift expert who said those abilities were needed.

But Siewertsen had his own witness, an EHS expert, who said the essential requirement for operating a forklift was vision, and that Siewertsen “is very qualified to operate a forklift.”

On the third issue – whether Siewertsen’s operation of forklifts and cranes created a “direct threat” to the health or safety of others that a reasonable accommodation couldn’t eliminate – the court found once again that a jury could decide the question either way.

However, “the testimony of Siewertsen’s supervisors does not establish, as a matter of law, there is ‘high probability of substantial harm,'” the judge wrote.

At this point, the case remains undecided. Siewertsen and Worthington could try to work out an agreement, or the case could go to trial.

But as we noted above, at least one federal judge seems to lean in Siewertsen’s favor.

Like we said at the beginning: We think this one is a tough call.

What do you think? Do years of safe operation with a strict safety protocol mean Siewertsen’s operation of a forklift doesn’t provide a “high probability of substantial harm” to his co-workers? Or is the amount of risk too great to allow Siewertsen to continue to perform the duties he’s done safely for years?

Let us know in the comments below.

(Siewertsen v. The Worthington Steel Company, Dist. Court, ND Ohio, No. 3:11CV2572, 9/25/15)

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Comments

  1. Ken Waldman, CRSP says:

    On the surface the laws seem to require companies to do a FULL risk assessment of a position. I am an experienced Safety professional with over 43 years working in the profession at various levels. IMHO too often companies use the ‘safety card’ to make decisions. I have been the safety person where we had hearing impaired workers driving large trucks; operating forklifts; working on very large machinery; as well as office workers. We ensured that all employees were appropriately trained and had any certifications to do their jobs. In this case it would seem, although the article is not specific on the subject, that the forklift operator was trained and certified to operate a forklift. This should be a ‘no-brainer’. Does this same company allow office workers to use earbuds hooked up to extremely loud music [both damaging their hearing – that would be compensable as a work related disease – and preventing any communication in the case of an emergency]. I think not. This man should be allowed to continue working safely and if hearing is an issue what about flashing lights on the forklifts approaching areas with less than perfect lines.
    Give him his job back and he deserves a huge ‘I’M SORRY’ from his employer at all levels.
    KW – Safety Professional from way back!

    • Curtis Brown says:

      Mr. Ken Waldman,

      It is no surprise that I agree with assessment. You have it correct in regards to the company correcting issues that caused the July 2010 the one near-miss incident. I wish to point out that this situation requires two operators to create this. I will expand on this to include apathy in this. Apathy by one of both of the machine operators as well as a apathy in the company’s safety culture. There may have been a issue of lack of mirrors to see around bad crossroads. The addition of different color flashing light at eye level to indicate unseen traffic are excellent preventive methods to alert oncoming operators of unseen traffic. If you can walk up to an intersection and not see well enough to detect an oncoming machine to the right or left, well, there you go. You need pressure switches that cannot be blocked by work floor products. The pressure switches trigger timers that activate the “Oncoming Traffic” lights to the blind areas. A somewhat simple improvement that shows the employees that the company is taking steps to assist the employees in being safe.

    • Ken is making his assessment on his first-hand experience with Deaf / Hearing Impaired employees. We have a new deaf employee at our facility. At first, some employees asked naïve questions like “can he drive a car” and “how will he know
      what to do”? That’s understandable since they haven’t interacted with a
      deaf person at work before. The new employee is exceptional -AND- is one of the
      safest equipment operators on the floor. Our company is in the process of
      hiring a second Deaf employee. We have all observed forklift drivers who were gifted with excellent hearing and sight – yet had no business operating a forklift.

      Companies train and license “individuals” based on their ability to do their job
      efficiently, effectively and safely. OSHA nor ANSI has imposed restrictions on
      forklift drivers who are hearing impaired. OSHA’s considerations would be
      case-by-case with powered industrial truck operators based on medical fitness,
      record of accidents / near misses or where a recognized hazard is present:

      https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22522

      Being Deaf does not hinder a person from operating any type of vehicle. In fact, there are Deaf airplane pilots. There may be restrictions just as there are with a
      personal automobile license. Boeing is a leader in hiring hearing impaired
      workers (see links below). Tinker AFB has many Deaf employees. Some operate
      heavy machinery. These are companies who are thinking forward, making
      reasonable accommodations and eliminating barriers that tend to sideline
      members of the team. A “can do” attitude begins with management.

      Here’s the bottom line: Deaf employees can do most things hearing employees can do with the exception of one thing – the ability to hear. Deaf are hindered more by
      uninformed hearing people who won’t give them a chance than by their own inability
      to hear. It’s not the ability to hear or not that makes the difference – it’s
      what is between the ears that makes a good safe driver. Be an employer
      that helps Deaf fly high and break the “sound barrier”.

      http://deafnation.com/nobarriers/usa-tour/boeing-deaf-workers-fly-high/

      http://www.faa.gov/pilots/become/deaf_pilot/training/

      http://www.faa.gov/pilots/become/deaf_pilot/certification/

      http://www.aopa.org/News-and-Video/All-News/2012/January/25/Deaf-pilot-spreads-the-word-You-can-fly

      http://journalrecord.com/tinkertakeoff/2011/12/08/tinker-employee-doesn%e2%80%99t-let-disability-get-in-the-way-of-achieving-his-goals/

      http://newsok.com/edmond-man-wins-award-for-workers-with-disabilities/article/5459499

    • Brian Hill says:

      Thanks, I agree and I guess my anger at trial lawyers shows through brightly in my reply. I have been in the unfortunate position of being sued and having to settle for “cost saving” when no fault was to be found . I applaud this deaf man and would personally hire him in a second based on his reported attitude, ,They were lucky to have him and should put him back on his lift pronto! DAMN the lawyers.

  2. It is indeed a tough call. Defense if hindered by the years that they let this go on. Having a good safety record for years is not de facto evidence of safety, it can be merely a lack of incident. To go to an extreme example, there are people who drive drunk for years with no incidents. That doesn’t mean it’s safe or that it should continue.

    No one has a right to a specific job. If company rules have changed, and they offered him other work commensurate with his skill, no loss of pay, he should not have a case. According to the article, he had no path to advancement with the other “menial” job he was offered. Really? What path of advancement does a forklift driver have if he is deaf? He can’t be a supervisor or manager. If he is dead set that he should be able to drive a forklift, let him get a job elsewhere doing that. I doubt he could, so this amounts to holding a company hostage because they were accommodating to him for years, and is not about the true safety of his skills, or a handicapped person in that environment.

    To me, the critical issue is less about this man than any unfortunate co-worker or plant visitor that is harmed as a result of his deficiency. What do you say to them?

    I’m all for integrating handicapped people into the mainstream environment, but let’s not be silly about it.

    • Cameo Hunsaker says:

      There is a huge assumption being made that a Deaf person wouldn’t be eligible for advancement in a company. Many hearing people think that “not hearing” is a Deaf person’s biggest hurdle. Actually, the Deaf community’s biggest hurdle is hearing people who assume they know about Deaf people: they assume they know what Deaf people are (or aren’t) capable of and they assume they know what a Deaf person needs to be successful. Oppression and discrimination starts the moment a hearing person thinks “If I were Deaf, I would want…” or “If I were Deaf, I wouldn’t be able to…”. If you’re not immersed in the Deaf community, there is literally no way for any hearing person to put themselves into a Deaf person’s shoes.

      You are making an assumption that this man’s deafness, solely, will be responsible for visitor’s or coworkers breach of safety. Just as has been stated earlier in this thread, hearing people are also capable of hurting others. Just because a Deaf employee has a different approach to safety doesn’t make it less effective.

    • Matthew Wilson says:

      I didn’t know being Deaf, disqualified you from being a supervisor or manager! I have had many hearing supervisors and managers that weren’t worth the price of the tie around their necks. Glad that having the ability to hear made them more qualified! I will have to advise my Co-op students about this handicap….

      MW (Teacher at a school for the Deaf)

  3. Brian Hill says:

    My question wold be , If the court decides in his favor and he continues to be allowed to operate the lift and crane, just who would be found liaqbke if he has an incident that seriously injures or kills someone? Anyone can have an accident, personally I would bet that this man is so careful he may be the safest operator in the plant but in today’s world someone will pay if the worst happens, just who that would be in this case would be interesting.

    • Curtis Brown says:

      Mr. Brian Hill,
      Taking your point about liability in question. Just who is liable if a 100% operator is doing their job and has a accident? According to the available evidence Mr. Siewertsen was as close to a prefect employee as possible. He knew of his limitations and adjusted to them. He was described as a superior employee as far as safety was involved even receiving rewards and awards for this safety attitude. Yes, the world is becoming more and more litigious every passing day. I believe that the source of this is the trial lawyers and their associations. As I have stated Mr. Siewertsen was a above average safety operator. I further believe but have no proof that his attitude “rubbed off” onto others employees. Witness the statement that he asked other employees if they heard the audio alarm/alert on the machine he was operating. This would draw that employee’s attention to the safety issue. As you have said that anyone can have accident. It can happen to the best and the worst of us. Thanks.

  4. Curtis Brown says:

    I would further comment on the article by Mr. Fred Hosier. I believe that his article was very well written and has provided a good supply of mental fuel for a healthy discussion of this issue. What is this issue,? The way I see it, it is, can persons who are deaf operate any machinery in any industrial / commercial environment safely. Do companies allow disabled personal to aspire to do more?

    An interesting point was mentioned in the article. “January 2011, a deaf employee at another Worthington plant requested to operate forklifts. The manager of that plant sought guidance from the owner of a company that provided forklift training. The advice was that deafness was too much to overcome in a busy plant, and deaf employees should not be allowed to operate forklifts.” The article does not say so but it implies that the other disabled person was not allowed to operate a forklift. And this on the advice of the owner of a company that provides training in how to use a forklift. Why would he say that? Did he have prior knowledge from having trained such personal? Did he just think that they were un-trainable? Did he think that they would be too hard to train? Or did he think that all of his training sessions were totally audio-visual with little written training and no braille follow along guides with illustrations? The article does not indicate. However, that seems to have triggered all the events following. I suggest that the owner of the company that provided forklift training be taken to task supplying a self-serving answer. What do you think?

  5. I have been a Forklift,Crane & Elevated platform instructor for over 18 years and can definitely say that a deaf person can safely operate a forklift. I’ve trained and or re certified many over the years. When you lose one sense the others are elevated. For the most part a def person is more aware of there 360 surroundings that one that can hear. Some plants are so noisy that in reality all workers are def because of decibels and wearing hearing protection. I wouldn’t be surprised if there was a little bit of politics going on here.

    • Glenna Sutton Smith says:

      I absolutely agree based on my experience with deaf miners working on and around large haulage equipment in open pit and underground mines. I even fended off a complaint made by a former MSHA employee claiming a deaf miner was a risk to himself and his co-workers. The misconception mostly comes from being uncomfortable around someone that communicates differently.

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