Employee Health & Safety

ROSENBAUM, Circuit Judge:

The Family Medical Leave Act (“FMLA”) is a federal statute that entitles eligible workers who need to recover from a serious injury to take up to twelve weeks of unpaid leave during any twelve-month period. Employers are prohibited from interfering with, restraining, or denying an employee’s efforts to exercise any FMLA right. Separately, most states require employers to provide their employees with workers’ compensation benefits. Workers’ compensation allows an employee who is injured in a work-related incident to receive payments for all reasonable medical care and lost wages resulting from that injury.

Sometimes the benefits of these laws can overlap. That’s what happened here. Now, Defendant-Appellee Hospital Housekeeping Systems seeks to use one—workers’ compensation—as a shield against the other—the FMLA. Hospital Housekeeping’s employee Plaintiff-Appellant Noorjahan Ramji seriously injured her knee while at work. Hospital Housekeeping told her nothing about her rights under the FMLA, instead handling the injury solely as a workers’ compensation claim.

After a few days off and a temporary light-duty assignment, Ramji received medical clearance to resume her regular-duty position. But before Hospital Housekeeping would allow her to do so, Ramji first had to pass an essential-functions test, which required her to complete certain physical tasks that the doctor who cleared her was not advised of. Among other things, Ramji had to repeatedly engage in deep squats and bend to one knee. Though Ramji was able to perform several of these exercises, she began to experience pain in her injured knee before she finished all of them. As a result, Ramji did not pass the test. So Hospital Housekeeping discharged Ramji. At no point before Hospital Housekeeping fired Ramji did Hospital Housekeeping advise Ramji of her rights under the FMLA or give Ramji an opportunity to take twelve uninterrupted weeks of leave to rehabilitate her knee, even though the FMLA entitled her to that relief.

Ramji filed suit for interference with her FMLA rights. At the district court, the parties filed cross-motions for summary judgment. Hospital Housekeeping sought in part to avoid liability under the FMLA by pointing to its compliance with its workers’ compensation responsibilities. The district court granted summary judgment in favor of Hospital Housekeeping.

But the FMLA does not set up a clash of Titans between itself and workers’ compensation. So providing workers’ compensation benefits cannot absolve an employer of all obligations under the FMLA. For this reason and others, and with the benefit of oral argument, we vacate the entry of summary judgment and remand for further proceedings.

I.

“case-h2”>A.

For nearly eleven years, Ramji worked as a housekeeper, cleaning patient-examination rooms, hallways, and bathrooms at Eastside Medical Center in Snellville, Georgia. Her daily tasks included mopping, sweeping, dusting, cleaning walls, removing trash, and making beds.

In 2013, Hospital Housekeeping, which provides contracted cleaning and facilities-management services to hospitals, took over maintenance operations at Eastside Medical Center. Ramji’s employment fell under Hospital Housekeeping.

On the morning of September 15, 2016, as Ramji was getting ready to clock out from her night shift, she tripped on the leg of a breakroom table, fell face down onto the ground, and injured her right knee. Pamela Merriweather, then the director of Hospital Housekeeping’s division at Eastside Medical Center, assisted Ramji into a wheelchair and took her to the emergency room for an X-ray of her swollen knee.

Upon examining Ramji’s knee, Physician Assistant Christina Eid issued Ramji a medical work excuse: “Ramji was seen on 9/15/2016 and is excused from work from 9/15/2016 through 9/18/2016.”

At the time of her injury, Hospital Housekeeping did not provide Ramji with any information about eligibility for leave and rights under the FMLA. Instead, Hospital Housekeeping immediately handled Ramji’s injury as a workers’ compensation claim. And when Ramji needed to take eleven days off between the date of her accident and her return to work in a light-duty position, Hospital Housekeeping required Ramji to use sick leave.

During this eleven-day period, on September 23, Ramji had her first follow-up medical appointment with Dr. David Harkins of Athens Orthopedics. In accordance with Hospital Housekeeping’s workers’ compensation policy, Merriweather accompanied Ramji to all follow-up appointments and treatments. At the September 23 appointment, Dr. Harkins injected a cortisone shot into Ramji’s knee and diagnosed her injury as right knee pain and derangement. Dr. Harkins also referred Ramji for physical-therapy sessions to occur two to three times per week for six to eight weeks. The goal of these sessions was to increase the knee’s range of movement and strength while decreasing pain. Besides treating Ramji, Dr. Harkins issued a light-duty medical release permitting Ramji’s return to work—but with the following restrictions: no squatting, kneeling, or climbing.

Three days after that appointment, Hospital Housekeeping offered Ramji the chance to return to a light-duty position with restrictions on kneeling, squatting, and climbing. That position included tasks like making copies, folding rags and mops, creating washcloth origami, cleaning small items, counting inventory, and rolling silverware. Ramji accepted the offer and returned to work that day.

On October 10, Ramji, once again accompanied by Merriweather, attended her first physical-therapy session. The physical therapist observed signs and symptoms consistent with right knee derangement and recommended that Ramji initially be seen twice a week for four weeks, for a total of eight visits. But, the physical therapist added, therapy might be extended and occur more frequently, depending on Ramji’s progression. Ramji found these physical-therapy sessions helpful in reducing her knee pain.

On October 21, before completing the physical therapist’s full recommended physical-therapy course, Ramji had a second follow-up appointment with Dr. Harkins. She told Dr. Harkins that the cortisone injection she received during her September 23 appointment “took away all of her pain,” that “physical therapy has helped tremendously,” and that she was ready to return to work. After observing the knee’s full range of motion without pain or instability, Dr. Harkins concluded that Ramji’s right knee and ankle pain had been resolved and that she had reached maximum medical improvement with a zero-percent disability rating. As a result, Dr. Harkins reasoned, Ramji could return to regular-duty work that day.

Significantly, though, Merriweather, who once again accompanied Ramji to her appointment with Dr. Harkins, never advised Dr. Harkins about Ramji’s regular duties at Eastside Medical Center. Nor did Merriweather explain that company policy required Ramji to complete an essential-functions test upon her return to work from her injury or what tasks the essential-functions test demanded. Dr. Harkins also did not address the need for Ramji’s remaining physical-therapy sessions, and he did not opine on Ramji’s ability to complete specific tasks required in her regular-duty position.

With her medical release in hand, Ramji returned to work that same day. Marcia Gordon, then the Assistant Director of Hospital Housekeeping’s second and third shifts at Eastside Medical Center, explained that the company’s workers’ compensation policy required that “all injured employees returning to regular duty complete an Essential Functions Test.” Ramji, who was unaware of this requirement, the content of the test, or consequences of failing it, took the test.

The essential-functions test required Ramji to successfully complete twenty tasks assessing her ability to grip, bend, lift, twist, climb, and push. An employee unable to complete every task listed on the test is subject to termination of her employment.

Five of the twenty tasks gave Ramji particular difficulty. Ramji had to complete ten deep-knee bends or squats. Deep-knee squats require the employee to squat down until her calves touch the backs of her thighs. After Ramji completed five deep-knee squats, her right knee began to hurt. Ramji informed Gordon of her knee pain and her inability to perform any more squats. Gordon then brought in Merriweather to help finish administering the essential-functions test. Despite Ramji’s recent injury and her complaints of knee pain, Merriweather insisted that Ramji complete the remaining deep-knee squats.

But Ramji’s knee pain persisted, and she was concerned about exacerbating her injury. So Ramji asked Merriweather whether she could use accrued sick and vacation leave to give herself additional recovery time to allow her to be able to finish the essential-functions test upon her return from leave. Merriweather refused, stating that Ramji could not use her sick or vacation leave and insisting that Ramji finish the essential-functions test that day.

With no other choice, Ramji continued plugging along with the test. As the test progressed, Ramji had trouble when Merriweather instructed Ramji to kneel on one knee until it touched the floor and then to stand up and kneel on the other knee until it touched the floor. Ramji’s knee pain prevented her from being able to complete this task.

Next, Merriweather directed Ramji to use one hand to lift a twenty-pound bag out of a hamper and place into a soiled-linen cart. Ramji struggled to lift a ten-pound bag with one hand.

Merriweather also told Ramji to walk up and down a flight of stairs without using a handrail. Although Ramji walked up and down the stairs, she had to use the guardrail for support. Merriweather also noted that Ramji was “very wobbly coming down” and lost balance on the steps.

The last task that caused difficulty required Ramji to stand on her toes and hold for 30 seconds. Ramji claimed that she was able to hold the pose for more than 30 seconds, but the essential-functions test notes indicated that she did not successfully complete the task. After failing the essential-functions test, Ramji went home for the weekend.

When Ramji returned the following Monday, October 24, Merriweather issued written warnings to Ramji for past incidents, including the September 2016 accident that led to her knee injury, a December 2015 accident in which Ramji tripped on a phone cord and injured her forehead, and an August 2014 insubordination matter where Ramji failed to attend a mandatory staff meeting. Merriweather also notified Ramji that Hospital Housekeeping was terminating her employment for failing to complete five tasks on the essential-functions test. Ramji responded by again asking to use unused sick and vacation leave, but Merriweather denied the request, noting that she was firing Ramji.

Ramji could not pay out of her own pocket for medical appointments and physical-therapy treatments even though the treatments offered promising benefits. So she hired a workers’ compensation lawyer, who helped her successfully reinstate medical care and ultimately obtain a financial settlement. But the process of restoring benefits and approving medical providers resulted in somewhat delayed and interrupted follow-up medical and physical-therapy treatments, as we summarize below.

Four months after her termination, Ramji resumed medical appointments when she had her first appointment with Dr. Maurice Jove, who tried a variety of methods to reduce Ramji’s knee pain, including a cortisone shot, unloader knee brace, six weeks of physical therapy, and an eight-week supply of an anti-inflammatory medication. After returning to physical-therapy sessions, Ramji felt improvements but wanted to continue physical therapy to ensure her knee completely healed.

Dr. Jove subsequently released Ramji to work “immediately with no restrictions,” but he prescribed an additional three physical-therapy sessions per week for six weeks. Despite Dr. Jove’s recommendation, Hospital Housekeeping never approved the additional physical-therapy sessions under workers’ compensation, so Ramji stopped attending physical therapy. After a review of Ramji’s MRI results, Dr. Jove observed that Ramji had osteoarthritis in her knee and recommended a knee replacement, since arthroscopic treatment would be ineffective.

Ramji obtained a second opinion from Dr. Scott Barbour, who also ultimately recommended a knee replacement. But Dr. Barbour concluded that Ramji’s condition requiring treatment, including surgery, resulted primarily from the September 16 workplace accident.

Ramji and Hospital Housekeeping ultimately agreed to a settlement of her workers’ compensation claim. Because of the costs, at no point until this time was Ramji able to receive an uninterrupted twelve-week period of treatment, including physical-therapy sessions.

After the settlement, Ramji began working with a physical therapist again. She fully recovered when she was finally able to take twelve continuous weeks of physical-therapy sessions and appropriate treatment. Ramji now maintains that she can perform all duties and functions required of her regular-duty position at Hospital Housekeeping.

III.

The FMLA entitles employees to take leave for certain family and medical reasons. 29 U.S.C. §§ 2601 and 2612. Among these, an eligible employee may take up to twelve weeks of leave because of a serious health condition that renders the employee unable to perform the functions of her position. § 2612(a)(1)(D). The FMLA also guarantees an eligible employee the right to be restored to her former position, or an equivalent position, at the end of her leave, provided she can execute the essential functions of her job. § 2614(a)(1). But if, after twelve weeks, the employee cannot perform an essential function of her job, her employer may choose to end her employment. 29 C.F.R. § 825.216(c).

Under the FMLA, a covered employer may not interfere with, restrain, or deny the employee’s exercise or attempted exercise of her FMLA rights to coverage, leave entitlement, notice, benefits continuation, and job restoration. 29 U.S.C. § 2615(a)(1); 29 U.S.C. §§ 2601-2654; 29 C.F.R. §§ 825.100-825.803.

To establish an FMLA interference claim, an employee must show she was entitled to a benefit under the FMLA and her employer denied her that benefit. But a technical FMLA violation alone is not enough. Rather, the employee must also “demonstrate some harm” from the alleged interference, and that harm must be “remediable by either”damages’ or ‘equitable relief.’” Below, we address each of these requirements as they relate to Ramji’s claim.

“case-h2”>A.

We begin by considering whether Ramji showed she was entitled to an FMLA benefit. To satisfy this requirement, an eligible employee must demonstrate that she sought leave for a qualifying reason and that she provided notice meeting certain criteria.

The record contains ample evidence that Ramji’s knee injury served as a qualifying reason to take FMLA leave. An employee is entitled to FMLA leave if she has “a serious health condition that makes her unable to perform the functions of her position.” 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” means “an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider.” § 2611(11)(B). To qualify as “continuing treatment” under FMLA regulations, treatment (1) must involve a period of incapacity of more than three consecutive, full calendar days, and (2) must require either (a) treatment by a healthcare provider at least twice within 30 days of the first day of incapacity or (b) treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider. 29 C.F.R. § 825.115(a)(1)-(a)(2).

Ramji’s knee injury satisfies all these definitions.

First, Ramji injured her knee on the morning of September 15, and, after an emergency-room visit, she was excused from work from September 15 through September 18. That’s more than three consecutive, full days, so it meets the first half of the “continuing treatment” standard 29 C.F.R. § 825.115(a)(1) articulates.

Second, Ramji attended a follow-up appointment with Dr. Harkins on September 23. At that appointment, he gave her a cortisone injection in her knee, restricted her to light duty, and referred her to physical-therapy sessions occurring two to three times each week for six to eight weeks. That satisfies the second qualifying condition for “continuing treatment,” since Dr. Harkins prescribed a continuing regimen of physical therapy for Ramji. 29 C.F.R. § 825.115(a)(2).

Ramji therefore had a qualifying “serious health condition.” 29 U.S.C. § 2611(11)(B). And that condition caused her to be unable to perform the essential functions of her job. § 2612(a)(1)(D).

As for whether Ramji placed Hospital Housekeeping on sufficient notice for its duty to inform her of her right to FMLA leave, Ramji provided enough evidence there as well to allow a reasonable jury to conclude she met this requirement. This inquiry presents a mixed question of fact and law: the factfinder identifies the notice given, and the court assesses whether that notice was legally sufficient to cause the employer’s obligations to be triggered.

The critical question we must consider asks whether the “employee adequately conveyed to the employer sufficient information to put the employer on notice that her absence was potentially FMLA-qualifying.” An employee must provide proper notice to make out an FMLA interference claim. To fulfill this requirement, an employee’s notice must be timely and contain sufficient information—requirements that differ, depending on whether the employee’s need for leave is foreseeable or unforeseeable.

When, as here, the employee’s need for leave is unforeseeable, she must give notice “as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R § 825.303(a). As for the content of the notice, an employee seeking FMLA leave for the first time need not “expressly assert rights under the FMLA or even mention the FMLA to meet her obligation to provide notice.” §§ 825.301(b) and 825.303(b). Rather, notice must simply allow the employer to understand that the employee potentially qualifies for FMLA rights. FMLA regulations offer examples of sufficient notice, such as providing information about the “condition that renders the employee unable to perform the functions of the job” or “the anticipated duration of the absence, if known.” § 825.303(b).

Ramji contends that Hospital Housekeeping had real-time, sufficient notice of both her need for leave and the nature of her health condition. She points to the fact that Merriweather, who was Hospital Housekeeping’s FMLA administrator for Eastside Medical Center, was there when Ramji injured herself. Not only that, but Merriweather handled Ramji’s workers’ compensation and workplace-injury forms. Hospital Housekeeping also knew that Ramji was excused from work from September 15 through September 18. Plus, Merriweather personally accompanied Ramji to follow-up medical appointments and the doctor-prescribed physical-therapy sessions. We agree that these facts demonstrate that Hospital Housekeeping knew of the nature of Ramji’s injury and her potential qualification for FMLA leave.

So taking the evidence in the light most favorable to Ramji, Ramji has established that she was entitled to an FMLA benefit. For that reason, Ramji meets the first element of an FMLA-interference claim.

“case-h2”>B.

That brings us to the second element of an FMLA interference claim—whether Ramji demonstrated that Hospital Housekeeping denied her a leave benefit under the FMLA.

When an employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, that triggers the employer’s obligation to evaluate whether the employee’s requested absence in fact qualifies for FMLA protection. The employer must also provide notice to the employee of her eligibility for and rights under the FMLA within a certain timeframe. 29 C.F.R. § 825.300. A “failure to follow the notice requirements may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights.” § 825.300(e).

Ramji argues that Hospital Housekeeping denied her two types of FMLA notice: “eligibility notice” and “rights and responsibilities notice.” To satisfy its eligibility-notice requirement, an employer must advise its employee of her “eligibility to take FMLA leave within five business days, absent extenuating circumstances.” § 825.300(b)(1). Rights-and-responsibilities notice must “detail the specific expectations and obligations of the employee and explain any consequences of a failure to meet these obligations.” § 825.300(c)(1). As relevant here, rights-and-responsibilities notice must advise the employee of (1) the fact that “the leave may be designated and counted against the employee’s annual FMLA leave entitlement and the applicable 12-month period for FMLA entitlement,” (2) “the employee’s right to substitute paid leave ,” as applicable, and (3) “the employee’s rights to maintenance of benefits during the FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave.” § 825.300(c)(1)(i), (iii), and (vi). The employer must give the employee the rights-and-responsibilities notice at the same time it provides eligibility notice. § 825.300(c)(1).

Here, on September 16, a formal workers’ compensation claim for Ramji was filed with Hospital Housekeeping. That claim included information about the nature of Ramji’s knee injury, the need for emergency medical and follow-up treatment, and a release excusing Ramji from three days of work. And this information, in turn, activated Hospital Housekeeping’s duty to provide Ramji with FMLA notice within five business days, or in this case, by September 23. § 825.300(b)(1). But Hospital Housekeeping never offered Ramji FMLA eligibility and rights-and-responsibilities notice at any point during Ramji’s knee-injury recovery. So a reasonable jury could conclude that Hospital Housekeeping interfered with Ramji’s FMLA rights.

Hospital Housekeeping offers two excuses for why Ramji was not entitled to notice of her FMLA rights. First, it notes that it handled Ramji’s on-the-job injury through workers’ compensation. And Hospital Housekeeping asserts that, as Ramji was compensated for the excused days of work between September 15 and September 18 and was expected to return to work on September 19, it had no reason to believe Ramji needed FMLA leave for that period, and Ramji did not request FMLA leave. Second, Hospital Housekeeping observes that Ramji’s September 23 follow-up appointment fell on the same day as the purported deadline for the employer’s FMLA notice requirement. Based on this circumstance, Hospital Housekeeping contends that extenuating circumstances prevented it from offering Ramji FMLA leave before her appointment. And because Hospital Housekeeping waited until after the appointment before making an FMLA determination, it reasons, offering Ramji FMLA leave at that time would have contradicted Dr. Harkin’s medical assessment that Ramji could return to light-duty work on September 23.

Hospital Housekeeping’s first argument fails as a matter of law. Hospital Housekeeping cannot exempt itself from its FMLA notice obligations by offering Ramji paid workers’ compensation from the date of her injury on September 15 through her return to light-duty work on September 26. In fact, the FMLA regulations contemplate this scenario and specify that “the workers’ compensation absence and FMLA leave may run concurrently.” 29 C.F.R. § 825.702(d)(2) (“An employee may be on a workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers’ compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer).”).

Hospital Housekeeping’s second argument similarly lacks merit. Ramji’s acceptance of a light-duty position did not relieve Hospital Housekeeping of its FMLA obligations. The FMLA regulations unambiguously prohibit precisely this employer conduct: “if FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require an employee to take a job with a reasonable accommodation.” 29 C.F.R. § 825.702(d)(1) (emphasis added); § 852.702(d)(2) (“If the employer offers a light-duty position, the employee is permitted but not required to accept the position. As a result, the employee may no longer qualify for payments from the workers’ compensation benefit plan, but the employee is entitled to continue on unpaid FMLA leave until either the employee is able to return to the same or equivalent job the employee left or until the 12-week FMLA leave entitlement is exhausted.”) (citation omitted).

So once Dr. Harkins cleared Ramji for a light-duty position instead of the same or equivalent position she had, Ramji was entitled to decline Hospital Housekeeping’s light-duty job offer. 29 C.F.R. § 825.207(e). But Ramji never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave. Hospital Housekeeping made that choice for her by offering only a light-duty assignment. § 825.220(d) (specifying that an “employee’s acceptance of such light duty assignment does not constitute a waiver of the employee’s prospective rights, including the right to be restored to the same position the employee held at the time the employee’s FMLA leave commenced or to an equivalent position”).

And even assuming Hospital Housekeeping had the best of intentions in adopting a wait-and-see approach after Ramji’s September 23 follow-up appointment, an “employer’s motives are irrelevant” under the FMLA. We also find no basis to conclude that this reason for Hospital Housekeeping’s delay qualifies as an extenuating circumstance justifying its failure to provide Ramji with notice within the five-day period. 29 C.F.R. § 825.300(b)(1). Because Hospital Housekeeping did not give Ramji any FMLA notice whatsoever, it did not satisfy its FMLA notice obligations under 29 C.F.R. § 825.300(b)(1) and (c)(1). It therefore denied her a leave benefit under the FMLA, so Ramji established the second element of the FMLA interference claim.

“case-h2”>C.

Finally, we must determine whether Ramji can demonstrate harm, or prejudice, resulting from the employer’s interference with her exercise (or attempted exercise) of an FMLA benefit to which she is entitled. An employee may obtain relief for interference with an FMLA right only if she “has been prejudiced by the violation.” So an employee must show that the FMLA violation caused her to suffer injury that could be remedied in a way that the FMLA allows: damages or equitable relief.

First, as relevant here, when an employee has been denied or lost wages, the employer can be liable for “damages,” including “any wages, salary, employment benefits, or other compensation” that the employee has not received “by reason of” the FMLA violation. 29 U.S.C. § 2617(a)(1)(A)(i)(I). Second, employers are liable for “such equitable relief as may be appropriate, including employment, reinstatement, and promotion.” § 2617(a)(1)(B). Ramji contends that she can demonstrate two forms of prejudice resulting from Hospital Housekeeping’s violations: Hospital Housekeeping’s refusal to reinstate her and its denial to her of a lump-sum payment.

Beginning with reinstatement, Ramji observes that the FMLA notice provisions exist to ensure that employees “make informed decisions about leave.” She asserts that, consistent with its notice duties, Hospital Housekeeping should have advised Ramji of her right to take FMLA leave. Had Hospital Housekeeping done so, Ramji asserts, she would have used that knowledge to (1) make informed decisions about her healthcare with the knowledge that her job would be protected, (2) receive additional physical therapy and medical treatment for her knee, and (3) return to work after further treatment.

More specifically, when faced with the essential-functions test (or at the first sign of pain from the essential-functions test) that would end her employment if she did not pass it, she would have made the informed decision to first take the full twelve weeks of FMLA leave. Then she could have used that time to undergo a complete course of continuous physical therapy and to have longer to heal and regain her strength before attempting to take the essential-functions test. As Ramji explained,

If Ms. Merriweather let me take FMLA leave, I would have gotten physical therapy during my leave knowing that my job would be held for me while I was on leave. I did not know that they had to keep my job open. I would have found a way to pay for the treatment to keep my job. I could have borrowed money from my sister or other family members. I would have gotten the therapy because I really wanted my job back.

Hospital Housekeeping retorts that providing Ramji with the required notice would have made no difference. In its view, even if Ramji received notice of her right to FMLA leave and benefits (whether on September 15, the date of her injury, or October 21, the date she failed the essential-functions test), Ramji would not have been able to completely recover before the twelve weeks of FMLA leave expired. So, Hospital Housekeeping reasons, she would not have been reinstated because she still would have failed the essential-functions test. In support of this argument, Hospital Housekeeping relies on the statements of Dr. Jove, who testified in the resolution of Ramji’s state workers’ compensation claim. Dr. Jove opined that Ramji could have returned to complete knee function after only a total knee replacement, for which Ramji would have required more than twelve weeks to fully recover.

On this record, we conclude that a material issue of fact exists over whether an uninterrupted twelve-week FMLA leave period would have made a difference to whether Ramji could have passed her essential-functions test and returned to work. True, a reasonable jury might accept Dr. Jove’s medical opinion that Ramji would not have successfully recovered during twelve weeks of FMLA leave. But a reasonable jury would not be required to agree with Dr. Jove, in view of the other evidence in the record. This record also supports the conclusion that Ramji aggravated her condition during the essential-functions test administered so soon after her injury. And that, along with the delay in uninterrupted physical therapy, contributed to the injury and impaired her chances for a faster recovery by the time Dr. Jove met with Ramji.

In particular, Dr. Jove did not meet with Ramji until five months after her workplace injury. And even at that time, because Ramji no longer received medical benefits from Hospital Housekeeping following her termination, Ramji had been able to complete only four of the approved 24 physical therapy sessions.

A reasonable jury could draw the inference that when Ramji presented her knee to Dr. Jove five months after her injury, the injured knee Dr. Jove saw was not in the condition it would have been had Ramji taken twelve weeks of FMLA leave after the accident and received the entirety of her necessary treatment, instead of aggravating the injury by trying to complete the essential-functions test too early in her recovery period and having her necessary physical therapy delayed. Indeed, Ramji attested that once she eventually did receive a full twelve weeks of physical therapy, her knee regained its original ability, and she can now perform all tasks from the essential-functions test. A jury might find this evidence particularly compelling in light of Dr. Barbour’s conclusion that Ramji’s condition requiring treatment resulted primarily from the September 16 accident, not arthritis. In other words, unlike Dr. Jove, Dr. Barbour did not think that Ramji had a preexisting condition that would have substantially hindered her recovery.

That is enough to create a material issue of fact concerning whether Hospital Housekeeping’s failure to give Ramji the required FMLA notice prejudiced Ramji’s ability to obtain reinstatement to her job. To the extent that Hospital Housekeeping suggests that Ramji must definitively prove she would have been able to recover within twelve weeks, it is mistaken. The evidence Ramji has produced is enough to allow a reasonable jury to find in her favor. Requiring ironclad proof is more than summary judgment requires, and in a situation like this one, it would allow an employer to benefit from its failure to comply with the FMLA and provide the required notice.

This alone is sufficient for Ramji to have demonstrated prejudice.(n. 7 in opinion) Similarly unavailing is Hospital Housekeeping’s argument that an ADA reasonable-accommodation claim offered Ramji her sole option for relief. Hospital Housekeeping cannot shirk its FMLA obligations and force Ramji into an ADA claim by depriving her of a chance to take FMLA leave to which she is entitled.

But Ramji has also presented enough evidence to demonstrate a material issue of fact over whether Hospital Housekeeping’s failure to provide FMLA notice prejudiced her by inflicting damages. As Ramji points out, Hospital Housekeeping’s FMLA policy requires that employees “must use earned, but unused, paid time off, such as vacation and sick pay during the absence.” Significantly, it further explains that “all unused vacation and sick time runs concurrently with FMLA leave and will be paid out in one lump sum at the time of the FMLA start date” (emphasis omitted). So had Hospital Housekeeping given the proper FMLA notice, Ramji asserts, she would have taken her leave as FMLA leave and received a lump-sum payout of her accrued paid sick and vacation leave. But because Hospital Housekeeping failed to provide the required notice, Ramji continues, she lost out on that lump-sum payment.

Hospital Housekeeping disagrees that Ramji can show prejudice this way. It notes that it initially handled Ramji’s claim as a workers’ compensation claim. So, it reasons, if Ramji later tried to designate her leave, she would be unable to do so, since, in Hospital Housekeeping’s view, the regulations render “substitution of the employee’s accrued paid leave inapplicable.” 29 C.F.R. § 825.207(e).

The problem with Hospital Housekeeping’s position is that it accounts for only the leave Ramji took that was covered by workers’ compensation. But that leave amounted to just a small portion of the total twelve-week period of leave that Ramji could have taken under the FMLA. And as soon as the FMLA leave kicked in exclusively, the regulations again would have permitted substitution of accrued paid leave. So Ramji could have chosen or Hospital Housekeeping could have required Ramji to use her accrued paid leave. In fact, under Hospital Housekeeping’s own policy, Ramji would have been entitled to her accrued-leave payout. So Ramji has additionally and alternatively pointed to evidence in the record that establishes a material issue of fact concerning prejudice in the form of damages. Whether by damages or equitable relief (or both), Ramji satisfies the final requirement for a successful FMLA-interference claim—harm—so her claim survives summary judgment.

JED S. RAKOFF, United States District Judge.

Kenneth Frilando is a profoundly deaf man whose primary language is American Sign Language (“ASL”). Between 2016 and 2018, Mr. Frilando applied for three civil service positions: bus operator with the Manhattan and Bronx Surface Transit Operating Authority (“MaBSTOA”), train operator with the New York City Transit Authority (the “NYCTA”), and track worker with the NYCTA. Each position required applicants to pass a multiple-choice exam and “to understand and be understood in English.” The Department of Citywide Administrative Services (“DCAS”) regulates the examination procedures for the train operator, bus operator, and track worker exams and — as a matter of DCAS policy — the exams are not offered in languages other than English. For each exam, Mr. Frilando sought additional time and ASL interpretation of the oral instructions, exam questions, and exam answer choices. The NYCTA and MaBSTOA offered Mr. Frilando extra time and ASL interpretation of oral exam instructions, but denied Mr. Frilando’s request for ASL interpretation of exam questions and answers. Mr. Frilando did not ultimately take the exams for any of the three positions.

Kenneth Frilando then sued the NYCTA and MaBSTOA (collectively, “Defendants”), alleging violations of the Americans with Disabilities Act (the “ADA”) and NY state and city law.

The Court has carefully reviewed the parties’ pretrial submissions, the transcript of the trial, the trial exhibits, and the parties’ post-trial submissions. In addition, the Court has made credibility determinations based, among other things, on its observation of each witness’s demeanor and the consistency and logic of the witness’s accounts. Based on all this, the Court now issues its findings of fact and conclusions of law and, for the reasons that follow, grants judgment in favor of Defendants.

Findings of Fact

Kenneth Frilando is profoundly deaf. With hearing aids, Mr. Frilando can detect environmental noises like car horns, but he cannot understand spoken English and “has extremely poor speech and lip reading skills.” Specifically, Mr. Frilando reads English at only a third-grade reading level. Even with the aid of a dictionary or computerized “auto-correct,” he can write only hesitantly in English. In contrast, “he is completely fluent in American Sign Language.”

To his credit, Mr. Frilando has periodically sought employment, but has had difficulty achieving that goal. Around 2017, Mr. Frilando found the track worker, train operator, and bus operator positions on the career section of the MTA website and reviewed the job description and requirements for each position.

Track workers maintain, install, inspect, and repair subway and elevated train tracks, a job that requires lifting heavy equipment and working in the path of oncoming trains. Because they work under hazardous conditions, track workers work in “gangs” that verbally communicate with one another about the safety aspects of the work being performed. One core function of a track worker is “flagging,” in which track workers verbally communicate with train operators about when it is safe to proceed.

Train operator responsibilities include operating subway cars and trains, preparing trains for road service, making announcements, and “responding to audible signals such as alarm bells, train whistles, horns and radio conversation.”

Bus operators drive passenger buses in compliance with state law and local traffic regulations, collect fares, write reports on “revenues, accidents, faulty equipment and unusual occurrences,” and must be able to “hear horns, buzzers and verbal warnings.”

After reading the requirements for each application, Mr. Frilando applied for each position. He believed he was suited for the MaBSTOA bus operator position and NYCTA track worker position because these positions did not require formal education. However, the train operator position at the NYCTA required a year of “work experience continuous with one employer,” which Mr. Frilando did not have. Although not referenced in the Notices of Examination, the track worker and train operator positions with the NYCTA and the bus operator position with MaBSTOA also require candidates to meet a minimum hearing standard, which Mr. Frilando did and does not meet. Each position also required applicants “to understand and be understood in English,”As noted, Mr. Frilando does not speak English clearly or fluently. Finally, each position requires applicants to take and pass a multiple-choice exam.

Pursuant to Memoranda of Understanding between the NYCTA and DCAS entered into in 2011 and 2018, the NYCTA must adhere to DCAS protocols in the administration and development of civil service exams. Although MaBSTOA is a separate legal entity from the NYCTA, nevertheless, pursuant to a 2006 Memorandum of Understanding, the NYCTA also develops and administers examinations for MaBSTOA positions, adhering to the aforementioned DCAS regulations. Among other things, DCAS regulations specify that all “candidates must be able to understand and be understood in English.” Per DCAS policy, examinations must be administered in English and the questions may not be translated into any other language.

An examination development group (the “Exams Unit”) develops qualifying exams for both NYCTA and MaBSTOA positions after producing a detailed “job analysis,” which must be updated at least every five years. Through field interviews, surveys, and on-the-job observation of employees and their supervisors, the job analysis identifies the “knowledge, skills, and abilities required to perform essential tasks on the job.” The Exams Unit also asks “incumbents in the position to give importance and frequency ratings” to these core tasks. Based on incumbents’ ratings, the Exams Unit determines what knowledge, skill, or abilities the qualifying exams should test.

For the train operator position, the Exams Unit determined based on the job analysis that “written comprehension” and “written expression” were sufficiently important and frequently used skills to “be included in the competitive multiple-choice test plan.” Accordingly, 10 of the 60 questions on the train operator exam test “written comprehension” and 9 test “written expression.” Similarly, the job analysis for the track worker exam indicates that “written comprehension” and “written expression” abilities should be tested on the qualifying exam.

The bus operator exam was primarily developed for MaBSTOA by an outside company. However, the bus operator exam was also developed using a job analysis report. The job analysis for the bus operator exam indicates that it is “important” for a bus operator to be able to “read and interpret bulletins and directives,” “report unusual circumstances,” and “report delays, mechanical problems and emergencies to the Dispatcher via two-way radio.” Accordingly, the multiple-choice bus operator exam includes questions testing “written comprehension” and “written expression.”

On April 20, 2017, Mr. Frilando emailed the Exams Unit to request an ASL interpreter for the instructions and test questions on the train operator exam. Mr. Frilando submitted an audiological report and a doctor’s note with his accommodation request. Although Mr. Frilando did not initially request additional time in taking the exam, the doctor’s note stated that “as the result of his disability, Mr. Frilando will need some additional time to complete his DCAS testing.”

A month later, Jennifer Garcia, an associate analyst at the NYCTA, informed Mr. Frilando that the NYCTA would provide extra time for taking the exam and an ASL interpreter to interpret the test instructions in ASL but not to interpret the exam questions themselves, adding that “you need to be able to read in English if you want to take the exam.”

While waiting for Mr. Frilando to confirm whether he wanted to take the train operator exam, Ms. Garcia sent the accommodation request and supporting documentation to her manager, Michael Quiery. Mr. Quiery believed that more documentation was needed to support Mr. Frilando’s request for an interpreter. Accordingly, on June 2, 2017, the Exams Unit informed Mr. Frilando that “upon further review of the document submitted to support your request, we can only grant your request for additional time” and sought additional documentation from a licensed medical professional specifically supporting Mr. Frilando’s request for an ASL interpreter.

On November 21, 2017, Mr. Frilando requested ASL interpretation of the instructions and questions on the bus operator exam. On March 1, 2018, Mr. Frilando requested ASL interpretation of the instructions and questions on the track worker exam. A week later, Michael Nigro confirmed that the NYCTA was “in the process of planning your accommodation(s)” for the track worker, train operator, and bus operator exams and inquired whether Mr. Frilando sought additional time as well as ASL interpretation. In response, Mr. Frilando confirmed that he was requesting additional time. Michael Nigro inquired about Mr. Frilando’s calendar availability to take the exams, but Mr. Frilando did not respond until several weeks later. On April 2, 2018, Mr. Frilando confirmed his availability and asked for 100% extra time.

In late August 2018, the Exams Unit ultimately offered Mr. Frilando 200% of the time otherwise prescribed for taking each exam, as well as ASL interpretation of the spoken and printed exam instructions. However, the Exams Unit maintained that it would “not provide translation or interpretation services of test examination questions for any candidate whose primary language is not English,” because “the positions require that the candidate understand and be understood in English.” The NYCTA offered Mr. Frilando several late August and early September 2018 test dates for the track worker, train operator, and bus operator exams, but Mr. Frilando did not take any of the three exams.

Conclusions of Law

Against this factual background, Mr. Frilando argues that Defendants discriminated against him on the basis of disability in violation of the ADA, the NYSHRL, the NYCHRL, and the Rehabilitation Act by failing to accommodate his request for ASL interpretation of the questions and answers on the track worker, train operator, and bus operator exams. For the reasons that follow, the Court concludes that Defendants are not liable for disability discrimination under any of these laws.

To succeed on a reasonable accommodation claim under the ADA, a plaintiff must be “otherwise qualified” for the position, meaning that he “can perform the essential functions of the employment position” at issue “with or without reasonable accommodation.” 42 U.S.C. §§ 12111(8), 12112(a).

When a job applicant claims he or she was denied a reasonable accommodation to take a preemployment exam, courts ask (1) whether the applicant is qualified to perform the essential functions of job with (or without) an accommodation and (2) whether the preemployment exam measures the skills it intends to measure.

This two-step inquiry follows from the text and structure of the ADA. Title I of the ADA prohibits employers from denying a reasonable accommodation to “an otherwise qualified individual with a disability who is an applicant,” unless “the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). Separately, the ADA specifically addresses the use of preemployment tests in the application process by defining “discrimination against a qualified individual” to include “failing to select and administer tests concerning employment to ensure that, when such test is administered to a job applicant or employee who has an impairment, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired skills (except where such skills are the factors that the test purports to measure).” 42 U.S.C. § 12112(b)(7). However, unlike the general reasonable accommodation provision, the preemployment test provision does not repeat the term “qualified individual,” and thus does not expressly incorporate the requirement that a candidate be able to perform the essential functions of the job.

As a result, Mr. Frilando can succeed on his disability discrimination claim if he can prove either of two things: either that he can perform the essential functions of the track worker, train operator, or bus operator jobs with (or without) an accommodation; or, alternatively, that Defendants’ preemployment exams do not purport to measure English comprehension and expression. The Court considers each in turn.

I. The Essential Functions of the Positions

Mr. Frilando has not proven that he could perform the essential functions of the track worker, train operator, or bus operator jobs. When determining the “essential functions” of a position, courts look to (1) “the employer’s judgment as to which functions are essential,” (2) “written job descriptions prepared before advertising or interviewing applicants for the job,” (3) “the amount of time spent on the job performing the function,” and (4) “the work experience of past incumbents in the job.” 29 C.F.R. § 1630.2(n)(3). The essential functions of a position “are a matter of judgment and opinion,” and “the NYCTA has a statutory responsibility to operate the transit system ‘for the safety of the public.’” The NYCTA “may properly deem” a function essential for operating public transport because the function “conduces to the safety of passengers and because it serves to limit NYCTA’s tort liability in situations where an impairment might cause an accident as well as where it may be alleged to have done so.”

The NYCTA and MaBSTOA consider both the ability to engage in oral and written communication in English and sufficient hearing ability to meet the minimum hearing standard to be essential to the jobs here in issue. Because the job analyses are based on interviews with incumbents and survey data on the importance and frequency of certain tasks in each position, the job analyses are also instructive on the “essential functions” of each position. In addition, the Notices of Examination are “written job descriptions prepared before advertising or interviewing applicants for the job,” and should also be given significant weight when analyzing the essential functions of the track worker, train operator, and bus operator jobs. 29 C.F.R. § 1630.2(n).

The job analyses and Notices of Examination indicate that the essential functions of the track worker position include spoken communication with train operators and track workers about track hazards. The essential functions of the train operator position include making announcements in English and responding to bells, whistles, horns, and radio conversation. The essential functions of the bus operator position include writing reports on accidents and defective equipment, hearing horns and buzzers, and understanding verbal warnings in English. These functions are conducive to the safety of passengers, and thus the NYCTA and MaBSTOA have reasonably deemed them essential. Mr. Frilando is not qualified for any of the positions for which he applied, both because, as he concedes, he cannot understand or be understood in spoken English, and because trial testimony shows that Mr. Frilando cannot satisfy the minimum hearing standard for any position.

II. Defendants’ Use of Preemployment Exams

Mr. Frilando also has not proven that Defendants’ preemployment exams do not intend to measure English comprehension. While the civil service exams may not have been designed to identify a particular grade level of reading proficiency, the exams are designed to test the written comprehension and expression necessary to perform transit job functions. The Exams Unit determined that the track worker, train operator, and bus operator exams should test “written comprehension” and “written expression.” The Notices of Examination for the train operator and track worker exams confirm that the multiple-choice exams may test “the ability to understand written sentences or paragraphs” or “to use English for words or sentences in writing so others will understand.”

The Court’s review of the evidence related to the exams — including a review of one of the current examinations — convinces the Court that the tests not only purport to measure English comprehension and expression, but also do in fact function as English comprehension and expression tests. For instance, certain exam questions test only whether applicants can read signs to write accurate reports. Because the exams plainly purport to and do measure comprehension of written English and Mr. Frilando’s proposed accommodation would eliminate that very skill, Mr. Frilando cannot prove that Defendants discriminated against him in test selection or administration within the meaning of 42 U.S.C. § 12112(a).

“case-h2”>Good-Faith Interactive Process

Separate from the above, Mr. Frilando claims that Defendants can be held independently liable for failure to engage in an interactive process to assess his needs. Although federal, city, and state laws envision that employers will “engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested,” the precedents are clear that failure to engage in a good-faith interactive process is evidence tending to show disability discrimination, not an independent cause of action.

Separately, the Court also finds that Defendants did in fact engage in a good faith interactive process with Mr. Frilando, at least to the extent reasonably required at the early stage before Mr. Frilando chose not to take the exams. An adequate interactive process can involve “meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, asking the employee what he or she specifically wants, showing some sign of having considered the employee’s request, and offering and discussing available alternatives when the request is too burdensome.” Defendants corresponded with Mr. Frilando over sixteen months, sought details and documentation about Mr. Frilando’s disability and resulting limitations, repeatedly attempted to clarify Mr. Frilando’s requests, considered the requests, and discussed alternative accommodations. This lengthy exchange satisfies the interactive process requirement.

Catherine C. Blake, United States District Judge.

Lauren Searls brings this action against Johns Hopkins Hospital (“JHH”), claiming that the defendant discriminated against her on the basis of disability in violation of Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12112(a) (the “ADA” or “Title I”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”).⊕The Rehabilitation Act (1973), 29 U.S.C. § 701 et seq., prohibits disability discrimination by federal government agencies, federally-funded programs, and federal contractors. The employment discrimination standards under the Rehabilitation Act are the same as under the ADA. 29 U.S.C. §§ 791(f) and 794(d).

She seeks declaratory and injunctive relief, compensatory damages, attorneys’ fees and costs, and other appropriate equitable and legal relief. The plaintiff has filed a motion for partial summary judgment on the issue of liability under the ADA and Section 504, leaving the issue of damages to be resolved at trial. The defendant has filed a cross-motion for summary judgment on all of the plaintiff’s claims. For the reasons stated below, the court will grant the plaintiff’s motion for partial summary judgment, and deny the defendant’s cross-motion for summary judgment.

BACKGROUND

Searls is a deaf 2012 graduate of the Johns Hopkins School of Nursing. She can read lips but understands better through American Sign Language (“ASL”). When communicating with hearing individuals, she voices for herself. As a nursing student, Searls completed two clinical rotations in the Halsted 8 unit at JHH. During her clinical placements at JHH, the School of Nursing provided a full-time ASL interpreter. At the end of her final rotation, she received a faculty summary of her clinical performance. In the summary, the faculty member wrote that Searls “worked well with others on the team and communicated appropriately and with empathy with the patients and their families.” Under “overall performance,” the faculty member wrote:

Lauren provided quality nursing care in a very professional, caring and skilled manner. She has shown a strong work ethic and very positive attitude that helped to create a very positive work environment. She has performed as an entry-level graduate nurse on Johns Hopkins Hospital Halstead sic 8 unit. Lauren Searls has met all of the course objectives at the expected and frequently at a higher level.

On July 13, 2012, a few days before Searls’ graduation from the School of Nursing, Nurse Manager Stacey Rotman sent Searls an email giving her advance notice that she would be posting two openings for Nurse Clinician I positions in Halsted 8 and encouraging Searls to apply. Rotman later sent her an e-mail with the two job postings.

JHH’s job description of the Nurse Clinician I position states that a nurse is responsible for coordinating care, providing evidence-based patient care, working collaboratively, supporting safety standards, and using resources in a cost-effective manner. A requisite skill is “highly effective verbal communication and interpersonal skills to establish working relationships.” Communication is listed as an “essential job function,” and a nurse is required to “listen actively to opinions, ideas and feelings expressed by others and respond in a courteous and tactful manner.” Another essential job function is “communcating unresolved issues to appropriate personnel.” Nurses must also be competent in “general physiologic monitoring and patient care equipment such as defibrillator and glucometer monitor.”

Searls applied for the Nurse Clinician I position, and JHH offered her an interview. She interviewed with Rotman on August 15 and was offered the Nurse Clinician I position on Halsted 8 the next day. Searls accepted the offer that same day. Her offer letter included the provision that “the offer of employment and start date are contingent upon successful completion of a health screening and clearance by the Office of Occupational Health Services.” The annual salary for the position was $59,508.80.

After Searls received the offer, she asked Rotman whom to contact to request an ASL interpreter. Rotman told her to notify the Department of Occupational Health during her pre-employment screening. Searls told a staff member from the Department of Occupational Health that she would require full-time ASL interpretation as an accommodation. The staff member told Searls that Rhodora Osborn, JHH’s ADA Compliance Specialist, would be in touch with her to discuss the request. Mary Henderson from the Department of Occupational Health sent Osborn an email informing her that Searls “has a hearing deficit since age 2 and has bilateral hearing aids” and that she was “requesting a sign language interpreter.” Osborn then notified Kate Demers, the ADA/Accessibility Consultant at JHH at the time, and spoke with Henderson about Searls’ request for an interpreter.

Demers investigated the cost of providing one or two interpreters and determined that the average annual salary of an ASL interpreter proficient in medical terminology would be between $40,000 and $60,000 and concluded that Searls would require a team of two interpreters with her at all times at an annual cost of $240,000. In 2012, Halsted 8 had an operational budget of $3.4 million. Halsted 8 was a part of JHH’s Department of Medicine, which had an operational budget of $88 million in 2012. JHH had an overall operational budget of $1.7 billion in 2012.

On September 12, Demers sent Rotman an email with the estimate of the cost of an interpreter. Rotman forwarded this email to Karen Davis, the director of Medical and Radiology Nursing, commenting, “I know that we can’t afford this.” She also wrote, “They are expecting the department to pay for this. Why isn’t the hospital responsible?” Davis forwarded the emails to her supervisor, Vice President of Nursing Karen Haller, to ask for her thoughts. Davis wrote that Searls “is qualified,” but because of the cost of an interpreter, her “first response to this, given our financial issues, is to respond that I cannot accommodate this.” Davis also speculated that having an interpreter could create scheduling issues and that the interpreter might tell Searls the wrong medicine to use during an emergency situation. Davis concluded her email by writing that “Stacey Rotman tells me the nurse is bright and would be a good hire other than this hearing issue.” In response, Haller wrote, “I do not think we can accommodate this.” Following this exchange, Rotman responded to Demers’ email stating that she had talked to her director “and the department cannot accept the restrictions.” Demers then asked for Rotman’s reasoning, although she noted, “I assume it is cost.” She also wrote, “I want to be sure we have thoroughly investigated all avenues as Searls is a qualified applicant, and we are part of the larger JHH.” Rotman responded, “Yes, the reason is cost.”

On September 17, Demers asked Rotman for a “further breakdown” on the reason for rejecting the accommodation request, explaining her desire to “demonstrate we have shown good effort.” She asked Rotman to “try to include as much information as possible to illustrate hardship on the organization.” The next day, Demers asked Rotman to “determine what your department’s threshold would be for interpreting costs,” explaining that “it would be helpful to know what your department would be able to spend so we can see if a compromise would be a solution.”

Davis, who was also on the email chain, responded to Demers that while she would like to accommodate Searls, “this will not be possible.” She wrote, “There are no other funds to pull from within our department. The interpreters would be an ongoing operating expense that is not budgeted or funded. Thus, our threshold is zero for interpreter costs.” Davis further explained that because the overall budget of the unit was $3.4 million and the overall budget of the department was $88 million, “we would have to lay off 4 nurses to fund this as we cannot incur any new expenses.” She cautioned that laying off nurses “would cause inappropriate nurse patient ratios on this unit and an enormous safety risk.” Davis did not express any of the concerns she had raised in her email to Haller about scheduling and emergency situations, and only raised cost as the reason for not hiring Searls. During the time Searls’ accommodation request was evaluated, no one asked Searls how she would work with an interpreter, including during an emergency situation or when an alarm sounded, or proposed any alternative accommodation.

On September 20, Searls explained to Osborn that she was only seeking one full-time ASL interpreter. A few days later, Demers sent Rotman an email explaining that with one interpreter, instead of two, the cost of providing the accommodation would decrease to $120,000 per year, but “the undue hardship based on cost would still apply from my understanding.” Demers wrote that “a letter is being drafted for Lauren explaining the undue hardship based on cost,” but asked Rotman to let her know “if there are other reasons we should add.” Rotman never provided Demers with any reason other than cost for not hiring Searls.

Osborn and Rotman rescinded Searls’ job offer in a letter dated September 28. They explained:

After several interactive consultations with you and other resources as appropriate, we regret to inform you that we are unable to provide the interpreter services. We are unable to provide the accommodation because of its effect on the resources and operation of the department. As a result of the decision, we must rescind the offer of employment.

In January 2013, after several months of searching for a new job, Searls began working as a nurse at the University of Rochester Medical Center’s Strong Memorial Hospital (“Strong”), where she continues to work today. After Strong offered her the job, Searls requested a full-time ASL interpreter. Strong agreed, and since January 2013, Searls has worked with an ASL interpreter. Searls’ supervisor at Strong testified that Searls’ deafness and use of an interpreter have never negatively affected patient care, her response to alarms, or her participation in codes. At Strong, Searls has exceeded standards on her performance reviews and has received promotions.

ANALYSIS

Searls claims that JHH violated the ADA and Section 504 of the Rehabilitation Act by rescinding her job offer even though she was a qualified individual who, with the accommodation of an ASL interpreter, was fully able to perform the essential job functions of a nurse. The ADA makes it illegal for an employer to “discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). To establish a prima facie case on her failure-to-accommodate claim, Searls must show that (1) she is an individual with a disability within the meaning of the ADA; (2) JHH had notice of her disability; (3) she could perform the essential functions of her job with a reasonable accommodation; and (4) JHH refused to make such reasonable accommodation. Section 504 of the Rehabilitation Act mandates that “no otherwise qualified individual with a disability shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Employment discrimination claims brought under Section 504 are evaluated using the same standards as those “applied under Title I of the Americans with Disabilities Act of 1990.”

Even if Searls establishes her prima facie failure-to-accommodate case, JHH may avoid liability “if it can show as a matter of law that the proposed accommodation will cause undue hardship in the particular circumstances,” or that Searls constituted a “direct threat,” meaning that she posed a significant risk to the health or safety of others that could not be eliminated or reduced to an acceptable level by a reasonable accommodation.

The parties do not dispute that Searls is deaf and therefore has a disability within the meaning of the ADA and Section 504. JHH had notice of Searls’ disability because she had previously worked at the hospital with ASL interpreters during her clinical rotations, and she formally requested an ASL interpreter during her employee health screening. Furthermore, it is undisputed that JHH declined to provide Searls with her requested accommodation of a full-time ASL interpreter and rescinded her job offer as a result. Thus, whether Searls can make out a prima facie case of disability discrimination depends on whether an ASL interpreter was a reasonable accommodation, which in turn depends on whether hiring an ASL interpreter to work with Searls would have reallocated essential job functions.

I. Reasonable Accommodation

The parties dispute whether Searls’ request for a full-time accommodation was reasonable. To defeat an employer’s motion for summary judgment, a plaintiff must “present evidence from which a jury may infer that the proposed accommodation is reasonable on its face, i.e., ordinarily or in the run of cases. A reasonable accommodation is one that is feasible or plausible.” The reasonableness of an accommodation depends on whether it “enables the employee to perform the essential functions of the job in question.” Essential job functions are “functions that bear more than a marginal relationship to the job at issue.”

In defining “reasonable accommodation,” Congress expressly included “the provision of qualified readers or interpreters” as an illustration. 42 U.S.C. § 12111(9)(B). The Second Circuit recently explained that although an ASL interpreter may not always be a reasonable accommodation, interpreters are a well-recognized accommodation:

First, the term “reasonable accommodation” is defined by regulation to include “the provision of qualified readers or interpreters.” 29 C.F.R. § 1630.2(o)(2)(ii). Per se rules are unreliable in the disability context, so ASL interpretive services may not always constitute a reasonable accommodation. But according to the regulations, interpreters are a common form of reasonable accommodation. See 29 C.F.R. § 1630 app. (“Part 1630 lists the examples, specified in title I of the ADA, of the most common types of accommodation that an employer or other covered entity may be required to provide.”).

Searls further supports the reasonableness of her accommodation request through evidence from her experts, her current experience as a nurse at Strong where she works with an ASL interpreter and has received positive performance reviews, and her clinical rotation at Halsted 8 during which she was provided an ASL interpreter and received a positive review. Notably, Rotman offered Searls the nursing position at Halsted 8 because she thought she would be a strong addition to the unit, based in part on her colleagues’ opinion that Searls was able to perform her nursing duties during her Halsted 8 clinical rotation in which she worked with an ASL interpreter. Given that Congress included an “interpreter” as an illustrative example of a “reasonable accommodation,” employers commonly provide interpreters as a reasonable accommodation, and Searls has worked effectively with interpreters at Halsted 8 and in her current nursing job, Searls’ proposed accommodation was reasonable unless, as JHH argues, hiring a full-time ASL interpreter would have reallocated essential job functions.

“A reasonable accommodation ‘does not require an employer to reallocate essential job functions or assign an employee ’permanent light duty.’” “The ADA simply does not require an employer to hire an additional person to perform an essential function of a disabled employee’s position.” The Equal Employment Opportunity Commission’s regulations explain that:

An employer or other covered entity is not required to reallocate essential functions. The essential functions are by definition those that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. For example, suppose a security guard position requires the individual who holds the job to inspect identification cards. An employer would not have to provide an individual who is legally blind with an assistant to look at the identification cards for the legally blind employee. In this situation the assistant would be performing the job for the individual with a disability rather than assisting the individual to perform the job.

29 C.F.R. § 1630 app.

In determining which job functions are essential, “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). The two essential job functions included in the JHH Nurse Clinician I job description that are relevant to this case are (1) communicating with patients, family members, and other hospital personnel, and (2) monitoring and responding to alarms. The parties agree that Searls could not have performed these essential functions without an accommodation, but they disagree whether providing an ASL interpreter would have reallocated these duties.

Searls’ case is distinguishable from other cases where providing the requested accommodation amounted to reallocating essential job functions. In those cases, the accommodation request was found unreasonable because the employee requested that another employee perform the entirety of an essential job function, leaving the employee with no portion of the essential job function to perform. In contrast, even with the assistance of an ASL interpreter, Searls would perform a significant portion of the essential job functions of communicating and responding to alarms herself: Searls would decide which questions to ask, she would voice for herself in speaking to patients and other professionals, and she would act in response to alarms. An interpreter, lacking the requisite medical training, could not act independently of Searls to communicate about patient care and respond to alarms.

Therefore, because it is clear that Searls would retain responsibility for a substantial portion of the duties of communicating and responding to alarms if she were provided an ASL interpreter, the question becomes whether her inability to hear affected her ability to communicate and respond to alarms such that she would be “unable to ‘perform’ these essential functions within the meaning of the ADA. When the question is thus a matter of degree a plaintiff fails to perform the essential function only if her failure detrimentally affects the purpose of the employment.” As noted, with the aid of an interpreter, Searls could perform a substantial portion of the essential job functions of communicating and responding to alarms — most importantly, those portions requiring nursing judgment — so that her inability to hear did not detrimentally affect the purpose of employing her as a nurse. A nurse’s duties with respect to communicating and responding to alarms go beyond hearing what patients are saying and hearing an alarm ringing. Searls would have used her own medical expertise and training when speaking to patients, families, and other hospital personnel; providing care based on her exchanges with patients; and taking the appropriate action in response to an alarm after an interpreter communicated the sound of an alarm visually. Therefore, Searls’ accommodation request would not have reallocated the essential job functions of communicating with others and responding to alarms. Searls’ request for a full-time ASL interpreter was reasonable, and Searls has established a prima facie case of disability discrimination.

II. Undue Hardship Defense

JHH argues that providing Searls with an interpreter would have caused an undue hardship on the hospital’s operations. An employer is not liable if it “can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” 42 U.S.C. § 12112(b)(5)(A). Title I of the ADA defines “undue hardship” as “an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).” § 12111(10)(A). Subparagraph (B), in turn, provides a non-exhaustive list of relevant factors to be considered:

1. the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

§ 12111(10)(B). To demonstrate undue hardship, the employer “must show special (typically case-specific) circumstances.”

JHH’s overall budget, the Department of Medicine’s operational budget, and Halsted 8’s operational budget are all relevant factors. 42 U.S.C. § 12111(10)(B)(ii)-(iii). Despite the relevance of JHH’s overall budget, JHH’s motion for summary judgment focuses exclusively on the resources and operations of Halsted 8 and the Department of Medicine and ignores the question of how providing an interpreter costing at most $120,000, or 0.007% of JHH’s 2012 operational budget of $1.7 billion, could impose an undue hardship on the hospital.

JHH essentially argues that it had no money in its budget for reasonable accommodations. The employer’s budget for reasonable accommodations is “an irrelevant factor in assessing undue hardship” because “allowing an employer to prevail on its undue hardship defense based on its own budgeting decisions would effectively cede the legal determination on this issue to the employer that allegedly failed to accommodate an employee with a disability. Taken to its logical extreme, the employer could budget $0 for reasonable accommodations and thereby always avoid liability.” In its motion for summary judgment, JHH maintains that “neither of the operating budgets of the Halsted 8 unit nor the Department of Medicine, in which Halsted 8 was then located, had the budgeted resources to absorb the additional $120,000 cost.” JHH then claims that because a nurse’s starting salary is about $60,000, and a full-time ASL interpreter would cost $120,000, “in order to fund the $120,000 annual cost, the nursing unit would have needed to lay-off at least two full-time Registered Nurses.” The nursing unit would only have to discharge two nurses, however, and thereby reallocate the nurses’ combined salaries totaling $120,000, if it had budgeted $0 for reasonable accommodations. JHH’s position in its motion for summary judgment is consistent with the statement from Davis, the director of Medical and Radiology Nursing, that the department’s “threshold is zero for interpreter costs.”

Additionally, even if it is correct that the salary of a full-time ASL interpreter would be twice the salary of a nurse, that in itself does not establish that an ASL interpreter would be an undue hardship. The EEOC’s interpretive guidance on its Title I ADA regulations explains that “simply comparing the cost of the accommodation to the salary of the individual with a disability in need of the accommodation will not suffice.” 29 C.F.R. § 1630 app. Furthermore, it is “particularly relevant” that Strong has been able to accommodate deaf nurses. Because Strong has been able to provide Searls with an ASL interpreter, and because JHH seeks to prevail on its undue hardship defense based on its decision to budget $0 for reasonable accommodations, while failing to account for its $1.7 billion budget, JHH has not met its burden of establishing undue hardship. The plaintiff’s motion for summary judgment on this defense will be granted.

III. Direct Threat Defense

JHH also argues that employing Searls as a nurse would have imposed a direct threat. The ADA defines a “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). An “employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level.” In its motion for summary judgment, JHH notes that some alarms were only auditory and argues that “it would have been a significant patient safety risk to rely on an interpreter, without any nursing training, to engage in nursing judgment by determining which alarm was sounding and to rely on the interpreter’s judgment to determine when a patient emergency was occurring, requiring nursing assistance.”

JHH’s direct threat defense is based on post-hoc rationalizations and is therefore suggestive of pretext. The only statement JHH uses to support its direct threat defense that was made contemporaneously with its decision to rescind Searls’ offer of employment was Rotman’s September 23 email that noted Searls would need an interpreter during all work hours because “she will have unexpected phone calls, call bells ringing, critical patient situations, etc.” Nowhere in the email did Rotman state that Searls could not manage unexpected phone calls, call bells, or critical patient situations with the aid of an interpreter. All other contemporaneous evidence indicates that JHH rescinded the job offer because of the cost of providing a full-time ASL interpreter. Notably, Rotman explained that “the reason is cost” for not providing the accommodation. Additionally, when Demers wrote to Rotman to inform her that she was drafting a letter to Searls explaining “the undue hardship based on cost,” she asked “if there are other reasons we should add please let us know,” but Rotman never provided Demers any other reasons for denying the accommodation. Because JHH did not raise patient safety concerns until after Searls brought the lawsuit, because the issue of patient safety is absent from contemporaneous communications concerning the reason for denying Searls an ASL interpreter, and because the only explanation JHH gave to Searls for revoking her job offer was the cost of providing a full-time interpreter, JHH has not met its burden on its direct threat defense.

JHH’s direct threat defense also fails because the record shows that JHH failed to base its determination “on an individualized assessment of Searls’ present ability to safely perform the essential functions of her job.” Such an assessment must “be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence” and must consider factors such as: “(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.” 29 C.F.R. § 1630.2(r). No such individualized assessment occurred here. Instead, JHH relied on stereotypes or generalizations about deafness. Aside from Rotman’s September 23 email previously discussed, the only other evidence JHH presents to support its direct threat defense is Rotman’s deposition where she testified that she was concerned about Searls’ “ability to function safely as a nurse on Halsted 8” based on whether “she would be able to hear the alarms.” Rotman admitted that she had never observed Searls fail to respond to an alarm. She also said that it “wouldn’t be a safe situation” for a non-nurse to be trained to differentiate between the alarms. Rotman never expressed this concern to Searls. In fact, the defendant does not dispute that no JHH employee ever raised patient safety concerns with Searls or asked how she planned to work with an interpreter to respond to alarms. Rotman speculated that because Searls is deaf and cannot hear alarms she would endanger patient health, but she “failed to provide any medical basis for her conclusion, and she does not discuss whether the safety concerns could be alleviated by reasonable accommodation.” Therefore, JHH has not met its burden of establishing that Searls constituted a “direct threat” to the safety of others at Halsted 8. The court will grant the plaintiff’s motion for partial summary judgment on the issue of direct threat.

ROGERS, Circuit Judge:

SeaWorld of Florida, LLC, operates a theme park in Orlando, Florida, that is designed to entertain and educate paying customers by displaying and studying marine animals. Following the death of one of SeaWorld’s trainers while working in close contact with a killer whale during a performance, the Occupational Safety and Health Review Commission found that SeaWorld had violated the general duty clause, § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1), by exposing the trainers to recognized hazards when working in close contact with killer whales during performances, and that the abatement procedures recommended by the Secretary of Labor were feasible. SeaWorld challenges the order with respect to one citation. Concluding its challenges are unpersuasive, we deny the petition for review.

I.

On February 24, 2010, SeaWorld trainer Dawn Brancheau was interacting with Tilikum, a killer whale, during a performance before a live audience in a pool at Shamu Stadium in Orlando. Ms. Brancheau was reclined on her back on a platform a few inches below the water surface. Tilikum was supposed to mimic her behavior by rolling over. Instead, the killer whale grabbed her and pulled her off the platform into the pool, refusing to release her. She suffered traumatic injuries and drowned as a result of Tilikum’s actions.

The Secretary of Labor issued three citations to SeaWorld after an investigation by an Occupational Safety and Health Administration (“OSHA”) compliance officer. Only the second citation is at issue. It alleged two instances of a “willful” violation of the general duty clause for exposing animal trainers to the recognized hazards of drowning or injury when working with killer whales during performances. The first instance related to animal trainers working with Tilikum being exposed to “struck-by and drowning hazards” by being “allowed unprotected contact with Tilikum” while conducting “‘drywork’ performances on pool ledges, slideouts and platforms.” In SeaWorld’s terms, when trainers are out of the pool or on submerged ledges called “slideouts” in water no deeper than their knees, their interactions with killer whales are called “drywork.” Any interaction in deeper water is “waterwork.” According to the Secretary, “among other methods, one feasible and acceptable means of abatement would be to not allow animal trainers to have any contact with Tilikum unless they are protected by a physical barrier.” The second instance concerned animal trainers working with killer whales other than Tilikum who were exposed to struck-by and drowning hazards when they were “allowed to engage in ‘waterwork’ and ‘drywork’ performances with the killer whales without adequate protection.” The Secretary listed as possible abatement methods “prohibiting animal trainers from working with killer whales, including ‘waterwork’ or ‘dry work,’ unless the trainers are protected through the use of physical barriers or through the use of decking systems, oxygen supply systems or other engineering or administrative controls that provide the same or greater level of protection for the trainers.” The Secretary proposed a penalty of $70,000.

Following an evidentiary hearing, the Administrative Law Judge (“ALJ”) found that on February 24, 2010, a “performance” was still in progress when Tilikum seized Ms. Brancheau and pulled her into the pool water. The ALJ found that the first and third elements of a violation of the general duty clause — existence of a workplace condition presenting a hazard that likely caused death or serious physical harm — were established by the events on February 24, 2010: Ms. Brancheau’s death demonstrated that close contact with killer whales was a hazard likely to cause death or serious injury. Based on evidence regarding three previous deaths involving killer whales (beginning in 1991 with Tilikum), SeaWorld’s written training manuals and safety lectures as implemented specifically to Tilikum, and SeaWorld’s incident reports, the ALJ found that the Secretary had established by “abundant” record evidence that “SeaWorld recognized the hazard created when its trainers worked in close contact with Tilikum during drywork performances,” satisfying the second element of a violation. Further, the ALJ found that evidence, including SeaWorld’s incident reports, established that SeaWorld recognized the hazard when trainers worked in close contact with other killer whales; SeaWorld’s statistics regarding the predictability of killer whale behavior, on the other hand, were unpersuasive because not based on rigorous, scientific data. The ALJ concluded that SeaWorld’s claim that “it was unaware working with killer whales presents a recognized hazard is difficult to reconcile with numerous comments made over the years by SeaWorld management personnel, including two corporate curators of animal training whose comments were documented and circulated among all of the SeaWorld parks.”

The ALJ also found that the Secretary had established the fourth element of a violation: feasible abatement of the hazard for trainers working with Tilikum and other killer whales. SeaWorld had not argued, the ALJ noted, that it is infeasible to install barriers or implement a minimum distance between trainers and whales, but rather “considers the extensive safety training of its trainers and the operant conditioning of its killer whales to be an adequate means of abatement that materially reduces the hazard the killer whales present to the trainers.” The ALJ found the Secretary had met her burden to show SeaWorld’s safety program is inadequate. Despite SeaWorld’s contention that its operant conditioning “materially reduces the recognized hazard,” the ALJ concluded that “SeaWorld’s reliance on its trainers to recognize precursors and prevent unpredictable behavior by the killer whales runs counter to the requirements of the Act. ‘The duty to comply with section 5(a)(1) rests with the employer.’” The ALJ further concluded that “SeaWorld holds trainers to a near — impossible standard set by upper management, who engage in a form of Monday morning quarterbacking.” Additionally, the ALJ noted that SeaWorld had already implemented the means of abatement recommended by the Secretary for trainers working with Tilikum — namely, maintaining a minimum distance from the killer whale, or imposing a physical barrier between the killer whale and trainers — and concluded the same or similar abatement involving other killer whales was no less feasible.

Although crediting the testimony of a SeaWorld curator of animal training regarding the educational and inspirational justification for continuing “waterwork” with killer whales, the ALJ concluded that justification “must be measured against the risk incurred by allowing trainers to interact closely with killer whales.” Observing that OSHA has “no specific standard” regulating employees working in close contact with killer whales, and that the Secretary had presented no evidence SeaWorld had a “heightened awareness of the illegality of its conduct” or manifested “plain indifference to employee safety,” the ALJ found that violations were “serious,” not “willful,” and imposed a fine of $7,000 for the general duty clause violation, emphasizing that his order was limited to show performances. SeaWorld unsuccessfully sought discretionary review by the Commission, whereupon the ALJ’s decision and order became final.SeaWorld petitions for review of the general duty violation.

II.

The general duty clause, § 5(a)(1) of the Occupational Safety and Health Act, provides: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). As explained by the House Committee on Education and Labor, “bearing in mind the fact that there is no automatic penalty for violation of the general duty, this clause enables the Federal Government to provide for the protection of employees who are working under such unique circumstances that no standard has yet been enacted to cover this situation.” In a seminal case this court, in turn, observed that “though novel in approach and sweeping in coverage, the legislation is no more drastic than the problem it aims to meet.” Notwithstanding the “unqualified and absolute” textual imperative that the workplace be “free” of the recognized hazard, the court further observed that “Congress quite clearly did not intend the general duty clause to impose strict liability: The duty was to be an achievable one”. So understood, the court held that “all preventable forms and instances of hazardous conduct must be entirely excluded from the workplace.”

“To establish a violation of the General Duty Clause, the Secretary must establish that: (1) an activity or condition in the employer’s workplace presented a hazard to an employee, (2) either the employer or the industry recognized the condition or activity as a hazard, (3) the hazard was likely to or actually caused death or serious physical harm, and (4) a feasible means to eliminate or materially reduce the hazard existed.” Tempering the range of potential remedies that might be imposed upon finding a violation of the clause, the court explained: “In other words, ‘the Secretary must prove that a reasonably prudent employer familiar with the circumstances of the industry would have protected against the hazard in the manner specified by the Secretary’s citation.”’

SeaWorld contests only the second and fourth elements regarding recognized hazard and feasibility. In challenging the general duty citation, SeaWorld does not perforce contend that the Secretary of Labor or the Occupational Safety and Health Review Commission lack legal authority to require employers to provide a reasonably safe working environment for employees. Rather, SeaWorld takes issue with the interpretation by these officials of what constitutes a recognized hazard that would subject an employer to citation under the Occupational Safety and Health Act. First, SeaWorld contends that the finding that it exposed its employees to a “recognized hazard” is unsupported by substantial evidence. Second, it contends that “when some risk is inherent in a business activity, that risk cannot constitute a ‘recognized hazard.’” Pet’r Br. at 33. Third, it contends that the ALJ’s decision was based on unreliable expert testimony about the extent of killer whale predictability after SeaWorld’s training and precautions. As regards the feasibility of physical barriers and minimum distances SeaWorld contends that the Secretary failed to prove feasible abatement methods (or that SeaWorld had already implemented these measures), and that the ALJ failed to consider evidence these abatement measures present additional hazards and erred because eliminating close contact changes the nature of a trainer’s job. Finally, SeaWorld contends the general duty clause is unconstitutionally vague as applied because SeaWorld lacked fair notice of the Secretary’s abatement measures.

The court must uphold the Commission’s decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The factual findings of the Commission, “if supported by substantial evidence on the record considered as a whole, shall be conclusive.” 29 U.S.C. § 660(a). Under this standard, the court must “uphold Commission findings so long as there is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Likewise, the court “must accept the ALJ’s credibility determinations unless they are patently unsupportable.” The court will “defer to the Secretary’s interpretation of the Act and regulations, upholding such interpretations so long as they are consistent with the statutory language and otherwise reasonable.”

“case-h2”>A.

Whether a work condition poses a recognized hazard is a question of fact. Substantial evidence supports the finding that “drywork” and “waterwork” with killer whales were recognized hazards. Tilikum is a 32-year-old male killer whale with known aggressive tendencies who in 1991 killed a whale trainer at a marine park in Vancouver, British Columbia. SeaWorld had established special protocols for Tilikum, which prohibited “waterwork” and, among other things, required non-killer whale personnel and guests to stay five feet behind pool walls or three feet from Tilikum’s head, indicating that SeaWorld recognized the possibility of harm to people standing outside of the pool on land. Although “drywork” with Tilikum continued, SeaWorld limited it to a team of experienced trainers who used extra caution. The caution with which SeaWorld treated Tilikum even when trainers were poolside or on “slideouts” in the pool indicates that it recognized the hazard the killer whale posed, not that it considered its protocols rendered Tilikum safe.

As to other killer whales, SeaWorld suggests that close contact with these whales was not a recognized hazard because all whales behave differently and its incident reports help SeaWorld improve training. But SeaWorld’s incident reports demonstrate that it recognized the danger its killer whales posed to trainers notwithstanding its protocols. At the time of Ms. Brancheau’s death, seven killer whales were at the Orlando park. Even though SeaWorld had not recorded incident reports on all of its killer whales, a substantial portion of SeaWorld’s killer whale population had at least one reported incident. The ALJ also relied on the many comments by SeaWorld management personnel, including corporate curators of animal training, who described the need for caution around killer whales generally, not only around certain killer whales. Killer whales bit trainers’ body parts on several occasions (although not generally puncturing skin) and in 2006 a killer whale pulled a trainer underwater by the foot and submerged him repeatedly for approximately 10 minutes. Although this incident occurred during “waterwork,” substantial evidence supports the finding with regard to “drywork” as well. On numerous occasions, trainers fell or were pulled into the water, as later happened with Tilikum and Ms. Brancheau, or killer whales lunged out of the water toward trainers. These incidents constitute substantial evidence to support the ALJ’s finding that “drywork” was also a recognized hazard.

SeaWorld’s position is that working with killer whales was not a recognized hazard because its training and safety program adequately controlled the risk. To train its killer whales, SeaWorld uses “operant conditioning” to reinforce desired behaviors with food or other rewards. It also trains its employees who work with killer whales to recognize particular behaviors that it calls “precursors,” which indicate that the killer whales may act aggressively, and keeps detailed incident reports of when its killer whales had behaved aggressively or otherwise undesirably toward trainers, including pulling trainers into the pool. The Secretary presented evidence that the killer whales posed a hazard in spite of SeaWorld’s safety measures. On multiple occasions, including the death of Ms. Brancheau, SeaWorld’s incident reports indicated that the killer whales showed no immediate precursors of aggressive behavior or ignored SeaWorld’s emergency procedures designed to make them cease aggressive behavior. Statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather, they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous and unpredictable and that even senior trainers can make mistakes during performances, and the managers repeatedly urged caution in working with the killer whales. The evidence thus supports the ALJ’s finding that a recognized hazard existed, even beyond the impact of SeaWorld’s safety protocols.

In relying on SeaWorld’s safety program to establish a recognized hazard, the ALJ did not, as SeaWorld suggests, “invert the requirement of the General Duty Clause that the Secretary, ‘as a threshold matter,’ ‘submit evidence proving that the methods undertaken by the employer to address the alleged hazard were inadequate.’” In the Postal Service case, the Secretary alleged that letter carriers risked being hit by cars in dim or dark conditions and proposed carriers be required to wear reflective garments that complied with industry standards, but failed to show that carriers had been hit because of lack of visibility when wearing the reflective garments provided by their employer, or that the proposed reflective garments would have made a difference. Here, there was substantial record evidence that SeaWorld recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable.

The remedy imposed for SeaWorld’s violations does not change the essential nature of its business. There will still be human interactions and performances with killer whales; the remedy will simply require that they continue with increased safety measures. SeaWorld itself has limited human interactions. After Ms. Brancheau’s death in 2010, SeaWorld ceased “waterwork” with all of its killer whales. It also imposed distance between trainers and Tilikum during drywork and, to a lesser degree, between other killer whales and trainers during drywork. These self-imposed limitations are relevant to the assessment of which aspects of SeaWorld’s business are essential and indicate that the Secretary’s remedy will not eliminate any essential element. SeaWorld does not assert (and at oral argument disavowed) that a public perception of danger to its trainers is essential to its business. Nor has SeaWorld ever argued that limiting interactions in the way that the remedy requires would have a detrimental economic impact on its profits. And SeaWorld is, after all, a for-profit entity owned, at times relevant to the Commission proceedings, by the Blackstone Group, an investment firm.

Pelron Corp., 12 BNA OSHC 1833 (No. 82-388, 1986), on which SeaWorld relies, is inapposite. That case involved an enforcement action against a company that manufactured products by mixing, inter alia, ethylene oxide. The ALJ had defined the alleged hazard as the “possibility” of accumulations of unreacted ethylene oxide, which the Commission found could never be prevented. Thus, impliedly, the only remedy would have been to close the plant. Here, the Secretary and the Commission could reasonably conclude that the danger to SeaWorld’s trainers during performances from killer whales can be prevented by use of physical barriers and distance, and closing SeaWorld is not at issue. The hazard killer whales pose during performances is not “so idiosyncratic and implausible” that it cannot be considered preventable. SeaWorld controls its employees’ access to and contact with its killer whales, unlike the employer in Megawest Financial Inc., 17 BNA OSHC 1337 (No. 93-2879, 1995) (ALJ), who could not prevent the potentially criminal, violent actions of third parties residing in the apartment buildings it managed. SeaWorld’s reliance on the Commission’s observation in Pelron that “some industrial activities are by their very nature dangerous. To permit the normal activities in such an industry to be defined as a ‘recognized hazard’ within the meaning of section 5(a)(1) is to eliminate an element of the Secretary’s burden of proof,” is misplaced; the Commission was addressing the requirement that recognized hazards be “preventable” and “be defined in a way that identifies conditions or practices over which the employer can reasonably be expected to exercise control.”

To the extent SeaWorld maintains that close contact is integral to cleaning and caring for their animals (i.e., “husbandry”), and that it was arbitrary and capricious to find a recognized hazard in the performance context but not in the husbandry context, its position is unfounded. Contact during husbandry was not at issue before the ALJ or the Commission. Regardless, although some aspects of husbandry may require close contact, according to SeaWorld’s vice president for veterinary services, many procedures can be conducted in a medical pool with a lifting bottom that restricts the killer whale’s mobility, or can be performed from poolside behind a short wall. In his opinion, notwithstanding performance-contact limitations, “SeaWorld is adequately caring for these animals to this day.”

SeaWorld’s suggestion that because trainers “formally accepted and controlled their own exposure to risks,” the hazard of close contact with killer whales cannot be recognized, contravenes Congress’s decision to place the duty to ensure a safe and healthy workplace on the employer, not the employee. This court has long held “this duty is not qualified by such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.” SeaWorld’s reliance on Oil, Chemical & Atomic Workers International Union v. American Cyanamid Co., 741 F.2d 444 (D.C.Cir.1984), is misplaced; the alleged hazard in that case was the employer’s policy prohibiting women of childbearing age from working in high lead-exposure positions unless they had been surgically sterilized, and the court held that “the general duty clause does not apply to a policy as contrasted with a physical condition of the workplace.” The court explained that the optional sterilization policy “does not affect employees while they are engaged in work or work-related activities.” The potential harm to SeaWorld’s trainers exists in their workplace and involves conditions over which SeaWorld has control.

The Secretary and the Commission could also reasonably determine that the remedy does not go to the essence of SeaWorld’s productions. SeaWorld has had no “waterwork” performances since Ms. Brancheau’s death in 2010, and it temporarily suspended “waterwork” after other incidents, such as the killing of a trainer by a killer whale in 2009 at a nonSeaWorld park in Spain. With distance and physical barriers between Tilikum and trainers during drywork, Tilikum can still perform almost the same behaviors performed when no barriers were present. The nature of SeaWorld’s workplace and the unusual nature of the hazard to its employees performing in close physical contact with killer whales do not remove SeaWorld from its obligation under the General Duty Clause to protect its employees from recognized hazards.

“case-h2”>C.

Substantial evidence supports the ALJ’s findings that it was feasible for SeaWorld to abate the hazard to its employees by using barriers or minimum distance between trainers and killer whales, most notably because SeaWorld has implemented many of these measures on its own. When an employer has existing safety procedures, the burden is on the Secretary to show that those procedures are inadequate. The record evidence showed that SeaWorld’s training and protocols did not prevent continued incidents, including the submerging and biting of one trainer in 2006, the killing of a trainer by a SeaWorld-trained and — owned killer whale in 2009 at an amusement park in Spain, and Ms. Brancheau’s death in 2010. SeaWorld employees repeatedly acknowledged the unpredictability of its killer whales. This record evidence supports the ALJ’s finding that existing protocols were inadequate to eliminate or materially reduce the hazard to SeaWorld’s trainer employees performing with killer whales.

Abatement is “feasible” when it is “economically and technologically capable of being done.” After Ms. Brancheau’s death, SeaWorld required that all trainers work with Tilikum from a minimum distance or behind a barrier, and “waterwork” ceased with all of its killer whales. Implementing the ordered abatement is feasible because it would involve extending these practices to all killer whales and into the future. As the ALJ noted, SeaWorld had not argued the Secretary’s proposed abatement was not economically or technologically feasible and had already implemented abatement for at least one of its killer whales and needed only to apply the same or similar protective contact measures it used with Tilikum to other killer whales. Consequently, the Secretary was not required to specify the precise manner in which abatement should be implemented. That the ALJ subsequently granted SeaWorld’s request for a six-month extension of the abatement deadline, in view of SeaWorld’s difficulty in scheduling two consulting experts, does not undermine the substantial evidence that SeaWorld could feasibly abate the hazard. SeaWorld does not dispute that the Secretary’s abatement measures would materially reduce, if not eliminate, the hazard killer whales pose to its employees during performances. SeaWorld’s use of protective contact with Tilikum, the three-year moratorium on “waterwork” after Ms. Brancheau’s death, and repeated temporary cessation of “waterwork” with all killer whales or particular killer whales after other incidents support the finding that these changes were feasible and would not fundamentally alter the nature of the trainers’ employment or SeaWorld’s business.

To the extent SeaWorld suggests that veterinary care would be less effective and dangers to trainers from killer whales might increase absent close contact during performances, this issue is not properly before the court. SeaWorld’s petition to the Commission for review did not include this issue, and SeaWorld presents no extraordinary circumstances to excuse its failure to do so. The court, therefore, lacks jurisdiction to consider it.

“case-h2”>D.

Facial challenges to the general duty clause have been rejected, and although an as-applied challenge would be possible, courts have long accommodated possible constitutional problems with fair notice in this context by interpreting “recognized hazard” only to include preventable hazards, or applying the clause only “when a reasonably prudent employer in the industry would have known that the proposed method of abatement was required,”

SeaWorld contends the general duty clause is unconstitutionally vague as applied because it lacked fair notice that the abatement measures would be required. But the administrative record establishes that SeaWorld did not lack fair notice because the hazard arising from trainers’ close contact with killer whales in performance is preventable. Given evidence of continued incidents of aggressive behavior by killer whales toward trainers notwithstanding SeaWorld’s training, operant conditioning practices, and emergency measures, SeaWorld could have anticipated that abatement measures it had applied after other incidents would be required. SeaWorld suggests that it was entitled to rely on the fact that the State of California’s Division of Occupational Safety and Health (“Cal/OSHA”) did not issue a citation for killer whale hazards after a killer whale bit and dragged a trainer underwater during a performance, puncturing the trainer’s skin on both feet and breaking the metatarsal in his left foot. Cal/OSHA, however, inspected a different SeaWorld facility (in San Diego) and it, not the federal OSHA, resolved the citation question. In any event, the State inspection report included a warning on point. Although noting that SeaWorld had been following industry standards and was a recognized leader in training killer whales for performance, and that its employees were well-trained and followed emergency procedures, Cal/OSHA concluded that SeaWorld of San Diego’s procedures “were not entirely effective at stopping the unwanted behaviors of the killer whale during this attack” and that “short of eliminating all of the water interactions with the killer whales, there is no guarantee that employees can be kept safe from an attack by the killer whale once they get in the water with the animal.”

JUSTICE STEWART delivered the opinion of the Court.JUSTICE

The Occupational Safety and Health Act of 1970 (Act) prohibits an employer from discharging or discriminating against any employee who exercises “any right afforded by” the Act. The Secretary of Labor (Secretary) has promulgated a regulation providing that, among the rights that the Act so protects, is the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available. The question presented in the case before us is whether this regulation is consistent with the Act.

I

The petitioner company maintains a manufacturing plant in Marion, Ohio, for the production of household appliances. Overhead conveyors transport appliance components throughout the plant. To protect employees from objects that occasionally fall from these conveyors, the petitioner has installed a horizontal wire-mesh guard screen approximately 20 feet above the plant floor. This mesh screen is welded to angleiron frames suspended from the building’s structural steel skeleton.

Maintenance employees of the petitioner spend several hours each week removing objects from the screen, replacing paper spread on the screen to catch grease drippings from the material on the conveyors, and performing occasional maintenance work on the conveyors themselves. To perform these duties, maintenance employees usually are able to stand on the iron frames, but sometimes find it necessary to step onto the steel mesh screen itself.

In 1973, the company began to install heavier wire in the screen because its safety had been drawn into question. Several employees had fallen partly through the old screen, and on one occasion an employee had fallen completely through to the plant floor below but had survived. A number of maintenance employees had reacted to these incidents by bringing the unsafe screen conditions to the attention of their foremen. The petitioner company’s contemporaneous safety instructions admonished employees to step only on the angle-iron frames.

On June 28, 1974, a maintenance employee fell to his death through the guard screen in an area where the newer, stronger mesh had not yet been installed. Following this incident, the petitioner effectuated some repairs and issued an order strictly forbidding maintenance employees from stepping on either the screens or the angle-iron supporting structure. An alternative but somewhat more cumbersome and less satisfactory method was developed for removing objects from the screen. This procedure required employees to stand on power-raised mobile platforms and use hooks to recover the material.

On July 7, 1974, two of the petitioner’s maintenance employees, Virgil Deemer and Thomas Cornwell, met with the plant maintenance superintendent to voice their concern about the safety of the screen. The superintendent disagreed with their view, but permitted the two men to inspect the screen with their foreman and to point out dangerous areas needing repair. Unsatisfied with the petitioner’s response to the results of this inspection, Deemer and Cornwell met on July 9 with the plant safety director. At that meeting, they requested the name, address, and telephone number of a representative of the local office of the Occupational Safety and Health Administration (OSHA). Although the safety director told the men that they “had better stop and think about what they were doing,” he furnished the men with the information they requested. Later that same day, Deemer contacted an official of the regional OSHA office and discussed the guard screen.

The next day, Deemer and Cornwell reported for the night shift at 10:45 p.m. Their foreman, after himself walking on some of the angle-iron frames, directed the two men to perform their usual maintenance duties on a section of the old screen. Claiming that the screen was unsafe, they refused to carry out this directive. The foreman then sent them to the personnel office, where they were ordered to punch out without working or being paid for the remaining six hours of the shift. The two men subsequently received written reprimands, which were placed in their employment files.

A little over a month later, the Secretary filed suit in the United States District Court for the Northern District of Ohio, alleging that the petitioner’s actions against Deemer and Cornwell constituted discrimination in violation of § 11(c)(1) of the Act. As relief, the complaint prayed, inter alia, that the petitioner be ordered to expunge from its personnel files all references to the reprimands issued to the two employees, and for a permanent injunction requiring the petitioner to compensate the two employees for the six hours of pay they had lost by reason of their disciplinary suspensions.

Following a bench trial, the District Court found that the regulation in question justified Deemer’s and Cornwell’s refusals to obey their foreman’s order on July 10, 1974. The court found that the two employees had “refused to perform the cleaning operation because of a genuine fear of death or serious bodily harm,” that the danger presented had been “real and not something which had existed only in the minds of the employees,” that the employees had acted in good faith, and that no reasonable alternative had realistically been open to them other than to refuse to work. The District Court nevertheless denied relief, holding that the Secretary’s regulation was inconsistent with the Act and therefore invalid.

The Court of Appeals for the Sixth Circuit reversed the District Court’s judgment. Finding ample support in the record for the District Court’s factual determination that the actions of Deemer and Cornwell had been justified under the Secretary’s regulation, the appellate court disagreed with the District Court’s conclusion that the regulation is invalid. It accordingly remanded the case to the District Court for further proceedings. We granted certiorari, because the decision of the Court of Appeals in this case conflicts with those of two other Courts of Appeals on the important question in issue. That question, as stated at the outset of this opinion, is whether the Secretary’s regulation authorizing employee “self-help” in some circumstances, [29 CFR § 1977.12(b)(2), is permissible under the Act.

II

The Act itself creates an express mechanism for protecting workers from employment conditions believed to pose an emergent threat of death or serious injury. Upon receipt of an employee inspection request stating reasonable grounds to believe that an imminent danger is present in a workplace, OSHA must conduct an inspection. 29 U.S.C. § 657(f)(1). In the event this inspection reveals workplace conditions or practices that “could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by” the Act, 29 U.S.C. § 662(a), the OSHA inspector must inform the affected employees and the employer of the danger and notify them that he is recommending to the Secretary that injunctive relief be sought. § 662(c). At this juncture, the Secretary can petition a federal court to restrain the conditions or practices giving rise to the imminent danger. By means of a temporary restraining order or preliminary injunction, the court may then require the employer to avoid, correct, or remove the danger or to prohibit employees from working in the area. § 662(a).

To ensure that this process functions effectively, the Act expressly accords to every employee several rights, the exercise of which may not subject him to discharge or discrimination. An employee is given the right to inform OSHA of an imminently dangerous workplace condition or practice and request that OSHA inspect that condition or practice. 29 U.S.C. § 657(f)(1). He is given a limited right to assist the OSHA inspector in inspecting the workplace, §§ 657(a)(2), (e), and (f)(2), and the right to aid a court in determining whether or not a risk of imminent danger in fact exists. See § 660(c)(1). Finally, an affected employee is given the right to bring an action to compel the Secretary to seek injunctive relief if he believes the Secretary has wrongfully declined to do so. § 662(d).

In the light of this detailed statutory scheme, the Secretary is obviously correct when he acknowledges in his regulation that, “as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace.” By providing for prompt notice to the employer of an inspector’s intention to seek an injunction against an imminently dangerous condition, the legislation obviously contemplates that the employer will normally respond by voluntarily and speedily eliminating the danger. And in the few instances where this does not occur, the legislative provisions authorizing prompt judicial action are designed to give employees full protection in most situations from the risk of injury or death resulting from an imminently dangerous condition at the worksite.

As this case illustrates, however, circumstances may sometimes exist in which the employee justifiably believes that the express statutory arrangement does not sufficiently protect him from death or serious injury. Such circumstances will probably not often occur, but such a situation may arise when (1) the employee is ordered by his employer to work under conditions that the employee reasonably believes pose an imminent risk of death or serious bodily injury, and (2) the employee has reason to believe that there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger.

Nothing in the Act suggests that those few employees who have to face this dilemma must rely exclusively on the remedies expressly set forth in the Act at the risk of their own safety. But nothing in the Act explicitly provides otherwise. Against this background of legislative silence, the Secretary has exercised his rulemaking power under 29 U.S.C. § 657(g)(2) and has determined that, when an employee in good faith finds himself in such a predicament, he may refuse to expose himself to the dangerous condition, without being subjected to “subsequent discrimination” by the employer.

The question before us is whether this interpretative regulation constitutes a permissible gloss on the Act by the Secretary, in light of the Act’s language, structure, and legislative history. Our inquiry is informed by an awareness that the regulation is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act.

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The regulation clearly conforms to the fundamental objective of the Act—to prevent occupational deaths and serious injuries. The Act, in its preamble, declares that its purpose and policy is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources..” 29 U.S.C. § 651(b).

To accomplish this basis purpose, the legislation’s remedial orientation is prophylactic in nature. The Act does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring. It would seem anomalous to construe an Act so directed and constructed as prohibiting an employee, with no other reasonable alternative, the freedom to withdraw from a workplace environment that he reasonably believes is highly dangerous.

Moreover, the Secretary’s regulation can be viewed as an appropriate aid to the full effectuation of the Act’s “general duty” clause. That clause provides that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). As the legislative history of this provision reflects, it was intended itself to deter the occurrence of occupational deaths and serious injuries by placing on employers a mandatory obligation independent of the specific health and safety standards to be promulgated by the Secretary. Since OSHA inspectors cannot be present around the clock in every workplace, the Secretary’s regulation ensures that employees will in all circumstances enjoy the rights afforded them by the “general duty” clause.

The regulation thus on its face appears to further the over-riding purpose of the Act, and rationally to complement its remedial scheme. In the absence of some contrary indication in the legislative history, the Secretary’s regulation must, therefore, be upheld, particularly when it is remembered that safety legislation is to be liberally construed to effectuate the congressional purpose.

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In urging reversal of the judgment before us, the petitioner relies primarily on two aspects of the Act’s legislative history.

1

Representative Daniels of New Jersey sponsored one of several House bills that led ultimately to the passage of the Act. As reported to the House by the Committee on Education and Labor, the Daniels bill contained a section that was soon dubbed the “strike with pay” provision. This section provided that employees could request an examination by the Department of Health, Education, and Welfare (HEW) of the toxicity of any materials in their workplace. If that examination revealed a workplace substance that had “potentially toxic or harmful effects in such concentration as used or found,” the employer was given 60 days to correct the potentially dangerous condition. Following the expiration of that period, the employer could not require that an employee be exposed to toxic concentrations of the substance unless the employee was informed of the hazards and symptoms associated with the substance, the employee was instructed in the proper precautions for dealing with the substance, and the employee was furnished with personal protective equipment. If these conditions were not met, an employee could “absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period.”

This provision encountered stiff opposition in the House. Representative Steiger of Wisconsin introduced a substitute bill containing no “strike with pay” provision. In response, Representative Daniels offered a floor amendment that, among other things, deleted his bill’s “strike with pay” provision.He suggested that employees instead be afforded the right to request an immediate OSHA inspection of the premises, a right which the Steiger bill did not provide. The House ultimately adopted the Steiger bill.

The bill that was reported to and, with a few amendments, passed by the Senate never contained a “strike with pay” provision. It did, however, give employees the means by which they could request immediate Labor Department inspections. These two characteristics of the bill were underscored on the floor of the Senate by Senator Williams, the bill’s sponsor.

After passage of the Williams bill by the Senate, it and the Steiger bill were submitted to a Conference Committee. There, the House acceded to the Senate bill’s inspection request provisions.

The petitioner reads into this legislative history a congressional intent incompatible with an administrative interpretation of the Act such as is embodied in the regulation at issue in this case. The petitioner argues that Congress’ overriding concern in rejecting the “strike with pay” provision was to avoid giving employees a unilateral authority to walk off the job which they might abuse in order to intimidate or harass their employer. Congress deliberately chose instead, the petitioner maintains, to grant employees the power to request immediate administrative inspections of the workplace which could in appropriate cases lead to coercive judicial remedies. As the petitioner views the regulation, therefore, it gives to workers precisely what Congress determined to withhold from them.

We read the legislative history differently. Congress rejected a provision that did not concern itself at all with conditions posing real and immediate threats of death or severe injury. The remedy which the rejected provision furnished employees could have been invoked only after 60 days had passed following HEW’s inspection and notification that improperly high levels of toxic substances were present in the workplace. Had that inspection revealed employment conditions posing a threat of imminent and grave harm, the Secretary of Labor would presumably have requested, long before expiration of the 60-day period, a court injunction pursuant to other provisions of the Daniels bill. Consequently, in rejecting the Daniels bill’s “strike with pay” provision, Congress was not rejecting a legislative provision dealing with the highly perilous and fast-moving situations covered by the regulation now before us.

It is also important to emphasize that what primarily troubled Congress about the Daniels bill’s “strike with pay” provision was its requirement that employees be paid their regular salary after having properly invoked their right to refuse to work under the section. It is instructive that virtually every time the issue of an employee’s right to absent himself from hazardous work was discussed in the legislative debates, it was in the context of the employee’s right to continue to receive his usual compensation.

When it rejected the “strike with pay” concept, therefore, Congress very clearly meant to reject a law unconditionally imposing upon employers an obligation to continue to pay their employees their regular paychecks when they absented themselves from work for reasons of safety. But the regulation at issue here does not require employers to pay workers who refuse to perform their assigned tasks in the face of imminent danger. It simply provides that in such cases the employer may not “discriminate” against the employees involved. An employer “discriminates” against the employee only when he treats that employee less favorably than he treats others similarly situated.

2

The second aspect of the Act’s legislative history upon which the petitioner relies is the rejection by Congress of provisions contained in both the Daniels and the Williams bills that would have given Labor Department officials, in imminent-danger situations, the power temporarily to shut down all or part of an employer’s plant. These provisions aroused considerable opposition in both Houses of Congress. The hostility engendered in the House of Representatives led Representative Daniels to delete his version of the provision in proposing amendments to his original bill. The Steiger bill that ultimately passed the House gave the Labor Department no such authority. The Williams bill, as approved by the Senate, did contain an administrative shutdown provision, but the Conference Committee rejected this aspect of the Senate bill.

The petitioner infers from these events a congressional will hostile to the regulation in question here. The regulation, the petitioner argues, provides employees with the very authority to shut down an employer’s plant that was expressly denied a more expert and objective United States Department of Labor.

As we read the pertinent legislative history, however, the petitioner misconceives the thrust of Congress’ concern. Those in Congress who prevented passage of the administrative shutdown provisions in the Daniels and Williams bills were opposed to the unilateral authority those provisions gave to federal officials, without any judicial safeguards, drastically to impair the operation of an employer’s business. Congressional opponents also feared that the provisions might jeopardize the Government’s otherwise neutral role in labor-management relations.

Neither of these congressional concerns is implicated by the regulation before us. The regulation accords no authority to Government officials. It simply permits private employees of a private employer to avoid workplace conditions that they believe pose grave dangers to their own safety. The employees have no power under the regulation to order their employer to correct the hazardous condition or to clear the dangerous workplace of others. Moreover, any employee who acts in reliance on the regulation runs the risk of discharge or reprimand in the event a court subsequently finds that he acted unreasonably or in bad faith. The regulation, therefore, does not remotely resemble the legislation that Congress rejected.

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For these reasons we conclude that 29 CFR § 1977.12(b)(2) was promulgated by the Secretary in the valid exercise of his authority under the Act. Accordingly, the judgment of the Court of Appeals is affirmed.

LEVINSON, Judge.

Defendants (Olsten Corporation and ITT Specialty Risk Services, Inc.) appeal from a divided opinion of the Industrial Commission, awarding plaintiff (Alice McGrady) medical benefits and temporary total disability. We affirm.

The factual background of this appeal is summarized as follows: Plaintiff was fifty years old at the time of the hearing and had an eighth grade education. In 1994, she completed the course required for certification as a certified nursing assistant (CNA), and was employed by defendant as a CNA. As a CNA, plaintiff provided in-home care for patients requiring assistance with daily living. In July, 1999, plaintiff’s only client was Ms. Withers, an elderly woman with limited physical abilities. Plaintiff assisted Ms. Withers with bathing, dressing, personal care, housekeeping, and meal preparation. In addition, plaintiff drove Ms. Withers to various places in the community and did her grocery shopping. Ms. Withers enjoyed fresh fruit, which plaintiff obtained for her from the local farmers market or at a grocery store.

Plaintiff’s regular hours were from 6:00 a.m. until 3:30 p.m. On 26 July 1999 plaintiff arrived at her usual time and assisted Ms. Withers with breakfast. During breakfast, Ms. Withers asked plaintiff to take her dog “Footsie” out to the yard. Plaintiff testified she “usually took her out … sometimes twice a day.” While plaintiff was outside with Footsie, she noticed that Ms. Withers’ pear tree had borne a pear. She had previously obtained fruit from Ms. Withers’ peach tree without incident and decided to retrieve the pear for her and Ms. Withers to share. Plaintiff began to climb the tree; however, she soon realized that the pear was too high up for her to shake it out of the tree, so she started back down. As plaintiff was climbing back to the ground, she fell. Plaintiff was taken by ambulance to a hospital, where physicians determined that she had broken her back, suffering “50 percent compression fracture” of her spine, and resulting in “quite a bit of damage to the vertebral body.” She was initially treated with pain medication and bed rest, until further examination revealed that plaintiff had both an “acute compression fracture” and a “burst fracture” of the spine. Accordingly, plaintiff’s treating physician performed surgery on her vertebrae and implanted steel rods in her back. Despite the surgery, plaintiff continued to experience pain, and her physician testified at the hearing that it was unlikely that plaintiff could ever return to work, “even light duty.” He also testified that plaintiff’s injuries were caused by the fall from Ms. Withers’ pear tree.

On 9 September 1999, plaintiff filed a claim for workers’ compensation, which was denied by defendants on the basis that her injuries were not causally connected to her employment. A hearing was conducted before Deputy Commissioner Wanda Taylor on 17 April 2000, and on 5 October 2000 the deputy commissioner issued an opinion denying plaintiff’s claim for workers’ compensation. The opinion concluded that, although plaintiff’s accident had proximately caused her injuries, the fall itself “was not an activity which a person so employed might reasonably do in employment such as plaintiff’s.” Plaintiff appealed to the Full Commission, which conducted a review of the record on 7 January 2002. On 18 April 2002, the Industrial Commission issued an opinion reversing the deputy commissioner and awarding plaintiff medical compensation and temporary total disability. The opinion concluded that plaintiff’s attempt to get a pear from Ms. Withers’ pear tree either was “within plaintiff’s work duties” or was not a serious deviation from her job duties, and thus that plaintiff’s injuries were compensable. One commissioner dissented on the basis that “climbing a pear tree was not a contemplated action of plaintiff’s employment” and thus that there was “no causal relationship between plaintiff’s injuries and … her employment as an in-home caregiver.” From this opinion and award, defendants appealed.

Standard of Review

“The standard of appellate review of an opinion and award of the Industrial Commission in a workers’ compensation case is whether there is any competent evidence in the record to support the Commission’s findings of fact and whether these findings support the Commission’s conclusions of law.” Further, the Industrial Commission’s findings of fact “are conclusive on appeal if supported by any competent evidence.” “Thus, on appeal, this Court ‘does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.’” “Even where there is competent evidence to the contrary, we must defer to the findings of the Commission where supported by any competent evidence. The Commission’s findings of fact may only be set aside when ‘there is a complete lack of competent evidence to support them.’” The Commission’s conclusions of law, however, are reviewed de novo.

Defendants argue on appeal that the Industrial Commission erred by finding that plaintiff suffered a compensable injury. Under N.C.G.S. § 97-2(6) (2001) a compensable injury “means only injury by accident arising out of and in the course of the employment.” In the present case, there is no dispute that plaintiff’s injuries were caused by an accident. However, defendants contend that plaintiff’s injury did not arise “out of and in the course of” her employment.

“Whether an injury arises out of and in the course of a claimant’s employment is a mixed question of fact and law, and our review is thus limited to whether the findings and conclusions are supported by the evidence.” “The phrase ‘arising out of’ refers to the requirement that there be some causal connection between the injury and claimant’s employment. ‘In the course of’ refers to the time and place constraints on the injury; the injury must occur during the period of employment at a place where an employee’s duties are calculated to take him.” Thus, “where the evidence shows that the injury occurred during the hours of employment, at the place of employment, and while the claimant was actually in the performance of the duties of the employment, the injury is in the course of the employment.” “In other words, to be compensable, the injury must spring from the employment or have its origin therein.” The burden of proof is upon the claimant who “must establish both the ‘arising out of’ and ‘in the course of’ requirements to be entitled to compensation.” Moreover:

while the ‘arising out of’ and ‘in the course of’ elements are distinct tests, they are interrelated and cannot be applied entirely independently. Both are part of a single test of work-connection. Because the terms of the Act should be liberally construed in favor of compensation, deficiencies in one factor are sometimes allowed to be made up by strength in the other.

In the instant case, the Industrial Commission’s findings of fact included, in relevant part, the following:

In August 1994, plaintiff became employed with defendant-employer as an in-home caregiver. As a caregiver, plaintiff had a variety of job duties relating to the care of clients. Plaintiff also was required to make meals for clients for breakfast, lunch and dinner as well as snacks, perform household chores such as cleaning and laundering, as well as transporting the client and grocery shopping if requested.

While working for defendant-employer plaintiff was assigned as a caregiver in the home of Ms. Nancy Withers.

On July 26, 1999, after assisting Ms. Withers out of bed and preparing her breakfast, plaintiff took Ms. Withers’ dog outside and, while outside in the yard, plaintiff decided to pick a pear from the pear tree for herself and Ms. Withers. Plaintiff climbed into the tree to retrieve a pear and, as she was coming down, she fell from the tree.

Plaintiff regularly served fruit to Ms. Withers as a part of her job.

As an employee for defendant-employer, plaintiff was to provide services pursuant to a plan of care which authorized plaintiff to fix meals for Ms. Withers and to go grocery shopping.

Plaintiff’s activities in obtaining and preparing food for Ms. Withers were in the course and scope of her employment with defendant-employer. The taking of the pear was thereby consistent with plaintiff’s duties to acquire and prepare food for Ms. Withers.

Because defendants do not assign as error any of the Industrial Commission’s findings of fact, they are “conclusively established on appeal.”

We next determine whether the Industrial Commission correctly applied the law to these facts when it reached the following conclusion: “On July 26, 1999, plaintiff sustained a compensable injury by accident arising out of and in the course of her employment with defendant-employer when she fell from a pear tree while picking a pear for the consumption of her employer’s patient.”

Defendants argue that plaintiff’s injury is not compensable. They contend that, because plaintiff was not authorized to climb a tree in order to obtain a pear for Ms. Withers, plaintiff’s injury did not result from “a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment.” Bartlett v. Duke University, 284 N.C. 230 (1973) (denying compensation to claimant who aspirated food while dining out during a business trip). Defendants frame the issue of compensability primarily in terms of whether plaintiff was authorized to obtain a pear by climbing a tree, which defendants term “the critical issue in this case.”

However, a review of relevant appellate law indicates that a plaintiff’s entitlement to workers’ compensation generally is not defeated by his negligence, or by evidence that at the time of injury the plaintiff was engaged in a foolish, even forbidden, activity:

The Workers’ Compensation Act is a compromise. Nothing in it supports the notion that it was enacted just for the protection of careful, prudent employees, or that employees that do not stick strictly to their business are beyond its protection. It is not required that the employment be the sole proximate cause of the injury, it being enough that ‘any reasonable relationship to the employment exists, or employment is a contributory cause.’

Bare v. Wayne Poultry Co., 70 N.C.App. 88 (1984)(plaintiff suffers compensable injury “participating in horseplay” with deboning knife). See also, e.g., the following cases allowing compensation: Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248 (1982) (compensation not barred by actions that violate employer’s rules unless undertaken in “disobedience of a direct and specific order by a then present superior”); Watkins v. City of Wilmington, 290 N.C. 276 (1976) (injury compensable if “competent proof exists that the employee understood, or had reasonable grounds to believe that the act resulting in injury was incidental to his employment”) (citation omitted); Stubblefield v. Construction Co., 277 N.C. 444 (1970) (plaintiff suffered fatal accident while idly knocking dust and debris from conveyor rollers, actions which “had no relation to his duties”); Choate v. Sara Lee Products, 133 N.C.App. 14 (1999) (plaintiff injured in parking lot after she left production line in violation of company rules); Spratt v. Duke Power Co., 65 N.C.App. 457 (1983) (claimant injured while running to vending machine in violation of company rules); Patterson v. Gaston Co., 62 N.C.App. 544 (1983) (“negligence does not necessarily bar the award of compensation”). As explained by this Court:

An appellate court is justified in upholding a compensation award if the accident is ‘fairly traceable to the employment as a contributing cause’ or if ‘any reasonable relationship to employment exists.’ Compensability of a claim basically turns upon whether or not the employee was acting for the benefit of his employer ‘to any appreciable extent’ when the accident occurred. In close cases, the benefit of the doubt concerning this issue should be given to the employee in accordance with the established policy of liberal construction and application of the Workers’ Compensation Act.

We conclude that the Industrial Commission’s findings of fact easily establish that plaintiff’s accident arose “in the course of” her employment. We further conclude that these findings of fact sufficiently support its conclusion that plaintiff’s injury arose “out of” her employment. We note that the Commission’s findings specifically state that plaintiff (1) “was required to make meals as well as snacks”; (2) “regularly served fruit to Ms. Withers as a part of her job”; (3) “took Ms. Withers’ dog outside and decided to pick a pear for herself and Ms. Withers”; and (4) that plaintiff’s “activities in obtaining food for Ms. Withers were in the course and scope of her employment with defendant-employer.”

Defendants’ arguments are not without force. However, bearing in mind that we are bound by the Industrial Commission’s findings of fact, we are constrained to conclude that plaintiff suffered a compensable injury.

HUNTER, Judge.

Robert Deem (“plaintiff”) appeals the trial court’s grant of defendants’ motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). We agree with the trial court that the North Carolina Industrial Commission (“Industrial Commission”) has exclusive jurisdiction over plaintiff’s claims. Thus, we affirm.

The facts pertinent to this case are as follows: On 26 July 1993, plaintiff was an employee of defendant Treadaway & Sons Painting (“Treadaway Painting”) when he fell off a ladder and suffered a compensable injury. With the assistance of an attorney, plaintiff filed a workers’ compensation claim with the Industrial Commission against his employer, Treadaway Painting and its workers’ compensation carrier, defendant Montgomery Mutual Insurance Company (“Montgomery Mutual”). Montgomery Mutual hired an independent adjusting company, defendant R.E. Pratt & Co. (“Pratt”), to handle plaintiff’s workers’ compensation claim. Defendant Goad was Pratt’s adjuster assigned to plaintiff’s claim.

Plaintiff returned to work in November 1994 as a paint foreman. Later, his condition worsened and he was taken out of work on 3 January 1996. About the same time, Montgomery Mutual and Pratt hired defendant Concentra Managed Care (“Concentra”) “to provide vocational rehabilitation counseling for the Plaintiff.” Defendants Smith, Wertz and Seltzer were employees of Concentra. On 20 February 1996, plaintiff was released to work by his attending physician, however the release was based upon a number of restrictions. When Concentra notified Treadaway Painting that plaintiff could return to work with restrictions, Concentra was informed that plaintiff’s job was no longer vacant. However, Treadaway Painting offered the job of laborer to plaintiff, which plaintiff accepted.

On 11 July 1997 plaintiff, through counsel, entered into an “Agreement of Final Settlement and Release” with Treadaway Painting, Montgomery Mutual and Pratt.

Pursuant to this agreement, the plaintiff and his attorney Seth N. Bernanke agreed to release and discharge all claims available under the North Carolina Worker’s Compensation Act relating to this injury in exchange for payment of $100,000. On July 23, 1997 the Industrial Commission entered an order approving the compromise settlement agreement reached by the plaintiff and Treadaway, Montgomery Mutual and R.E. Pratt & Co. in the amount of $100,000.

Notwithstanding the former release and settlement agreement, on 31 December 1998, plaintiff filed this suit against Treadaway Painting, Montgomery Mutual, Pratt, Goad, Concentra and Concentra’s three employees, alleging that defendants committed fraud, bad faith, unfair and deceptive trade practices, intentional infliction of emotional distress and civil conspiracy arising out of the handling of his workers’ compensation claim.

In response to plaintiff’s complaint, each defendant filed a motion to dismiss pursuant to Rule 12(b)(1), specifically stating that North Carolina’s general courts of justice are without subject matter jurisdiction due to the Industrial Commission having exclusive jurisdiction, and; pursuant to Rule 12(b)(6), specifically stating that the plaintiff had failed to state a claim for which relief may be granted. The trial court agreed with defendants and granted each of their motions to dismiss based upon both Rules 12(b)(1) and (6). On appeal, plaintiff brings forward three assignments of error, all dealing with the trial court’s grant of each defendant’s motion to dismiss. Finding the record before us clear and case law plain, we affirm the trial court’s rulings.

In Johnson v. First Union Corp., plaintiffs Johnson and Smith each “filed claims with the North Carolina Industrial Commission seeking workers’ compensation benefits for repetitive motion disorders they allegedly suffered in the course of their employment. However, both subsequently had their claims rejected.” Like the plaintiff in this case, plaintiffs Johnson and Smith later filed suit in superior court against their employer, its workers’ compensation carrier, the adjusting company and the rehabilitation provider along with one of its employees, alleging: fraud, bad faith, refusal to pay or settle a valid claim, unfair and deceptive trade practices, intentional infliction of emotional distress and civil conspiracy. Although the trial court dismissed plaintiffs’ case stating that plaintiffs had failed to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), on appeal defendants argued—and this Court agreed—that the claims should have been dismissed pursuant to Rule 12(b)(1) because the Industrial Commission had exclusive jurisdiction.

In enacting the North Carolina Workers’ Compensation Act (“the Act”), our General Assembly set clear boundaries for how an employee injured on the job must seek remedy. Additionally, although the Legislature has amended parts of the Act over time, the main thrust of the Act and its purpose have remained the same:

… to provide compensation for an employee in this State who has suffered an injury by accident which arose out of and in the course of his employment, the compensation to be paid by the employer, in accordance with the provisions of the act, without regard to whether the accident and resulting injury was caused by the negligence of the employer, as theretofore defined by the law of this State.

We note here that, North Carolina is a contributory negligence state. Thus, to gain any remedy before the Act was enacted, an employee injured on the job would be subject to proving not only that the employer was negligent but that she herself was not negligent at all. Instead, under the Act:

The right of the employee to compensation, and the liability of the employer therefore, are founded upon mutual concessions, as provided in the Act, by which each surrenders rights and waives remedies which he theretofore had under the law of this State.

Thus, although there is a trade-off of rights, our Supreme Court has held that “the act establishes a sound public policy, and is just to both employer and employee.”

Nevertheless, plaintiff at bar argues that it matters not that his claims originally arose out of his compensable injury. Instead, he argues that the “intentional conduct” of defendants fails to come under the exclusivity provisions of the Act because that conduct did not arise out of and in the course of plaintiff’s employment relationship. Again, finding Johnson on point, we disagree.

From both his complaint and his brief to this Court, we can clearly glean that plaintiff’s cause of action arises out of his belief that “defendants engaged in fraudulent, illegal, and improper conduct designed at forcing plaintiff back into the job market at a made up job so that the defendants could artificially cut off plaintiff’s right to benefits under the Workers’ Compensation Act.” (Emphasis added.) Therefore, plaintiff’s complaint is nothing more than an allegation that defendants did not appropriately handle his workers’ compensation claim, and thus he was injured because he did not receive his entitled benefit. This is the exact argument of the Johnson plaintiffs and, in that case, this Court held that “the North Carolina Workers’ Compensation Act gives the North Carolina Industrial Commission exclusive jurisdiction over workers’ compensation claims and all related matters, including issues such as those raised in the case at bar.” Noting that the Johnson plaintiffs also alleged the defendant committed intentional torts against them (including unfair and deceptive trade practices), we hold in the case at bar that plaintiff’s claims are ancillary to his original compensable injury and thus, are absolutely covered under the Act and this collateral attack is improper.

However, plaintiff further argues that his current claims should be allowed in the general court of justice because they are claims of “intentional conduct.” Thus, plaintiff contends that as such, the “actions fall within the North Carolina Supreme Court’s exception of intentional conduct from the exclusivity rule” as set out in Woodson v. Rowland. Again, we disagree.

It is well established that the “substantially certain” standard set out in Woodson creates an exception to the exclusivity provision of the Act. However, it is also well established that the exception is extremely narrow in that plaintiff’s “forecast of evidence” must show the “employer intentionally engaged in the misconduct complained of knowing it was substantially certain to cause serious injury or death to the employee and the employee was injured or killed by that misconduct.” Since plaintiff does not contend, neither is there evidence of record to support a finding that defendants’ actions were “substantially certain to cause serious injury or death” to plaintiff, plaintiff’s claims do not rise to the level of a Woodson claim. Thus, the trial court’s dismissal of plaintiff’s claims for lack of subject matter jurisdiction is affirmed, as the Industrial Commission has sole jurisdiction over all the issues raised. We specifically note that the Industrial Commission has the exclusive jurisdiction over workers’ compensation agreements and employee claims of fraud, misrepresentation, undue influence, mutual mistake, intentional infliction of emotional distress, and unfair and deceptive trade practices with respect to those agreements. Our Supreme Court has long held that:

“If a plaintiff desires to attack a workers’ compensation agreement for fraud, misrepresentation, undue influence, or mutual mistake, and has evidence to support such an attack, he may make application in due time for a further hearing for that purpose. In such event, the Industrial Commission shall hear the evidence offered by the parties, find the facts with respect thereto, and upon such findings determine whether the agreement was erroneously executed due to fraud, misrepresentation, undue influence or mutual mistake. If such error is found, the Commission may set aside the agreement, and determine whether a further award is justified and, if so, the amount thereof.”

Thus, plaintiff’s sole remedy in this case was to petition the Industrial Commission to set aside his agreement with Treadaway Painting. We recognize plaintiff is contending that this remedy is insufficient. However, we believe our General Assembly is the correct body to consider changes to our current workers’ compensation remedies.

Having held that the trial court properly dismissed plaintiff’s claims for lack of subject matter jurisdiction, we need not address the issue of whether plaintiff’s claims were properly dismissed pursuant to N.C. Gen.Stat. § 1-1A, Rule 12(b)(6).