Spotting the Employment Law Issues in Avengers: Endgame

So like nearly all of America, my family saw Avengers: Endgame this weekend.

(Minor Spoiler Ahead!)

Of course, we laughed. We cried.  And it was definitely better than Cats.  

All the while thinking of the employment law issues that are just under the surface.

You can take the employment lawyer out of the office, but you can’t take the employment law out of an employment lawyer.  In fact, it was way back in 2012, that I first talked about the employment law issues with the Avengers.  (Seriously: If you don’t want to know ANYTHING, there’s a mild spoiler ahead but no major plot points are disclosed.)

So with that in mind, there were numerous employment issues that you might have missed in Avengers: Endgame.  Maybe you were under control of the Mind Stone by Loki.

Let’s start with an important issue: What Accommodations Do You Need to Provide to Professor Hulk?

Imagine having Bruce Banner on payroll as a professor at your university.

A brilliant — but unpredictable — genius, he has sometimes disappeared for days. He blames those days on his split personality and because you determined that his “personality disorder” was a disability, you’ve accommodated him. So far, so good.

Then one day, he says he’s going to have a “procedure” done. One that will combine his “personalities” — Banner and someone named “Hulk” — into one physical being.  He wants to be called Professor Hulk (as that character makes an appearance early on in Avengers: Endgame).  He says he’ll be hospitalized for a few days.

Is this a “serious health condition” requiring FMLA leave?

A serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care (defined as an overnight stay in a hospital, hospice or residential medical care facility; any overnight admission to such facilities is an automatic trigger for FMLA eligibility) or continuing treatment by a healthcare provider.

Either way, since you’re pretty sure that this would qualify you say sure – and grant him FMLA leave.   And then, he shows back up for work.

He’s now about 8 feet tall, green, and has the physical strength of, well, you’ve never seen anything like it.   He just wants to be treated as everyone else but he says he still might need some rest time during his teaching time for a bit to make sure things are “stable”.

What then?

It’s a bit more complicated than it might seem. (Actually, it seems really complicated, you say. But c’mon, this is the Marvel Cinematic Universe so pay attention.)

First off — does Professor Hulk (as he now requests you call him by) have a disability? A disability is defined as a physical or mental impairment that substantially limits a major life activity.  By all accounts, this new Professor Hulk has impairments that substantially increase a major life activity. His split personalities are gone.  In fact, he seems a bit superhero-ey to you.

Let’s go with maybe, maybe not. After all, you don’t want to make Professor Hulk angry.

But let’s just suppose he has a disability for the sake of argument, is the ability to take breaks a “reasonable” accommodation? Under some circumstances, for sure. AskJan is a helpful resource for employers and thankfully, some of the people who work on it weren’t “snapped” away by Thanos.  While not binding, AskJan advises:

Periodic rest breaks can allow an individual to move about, stretch, adjust their seating position, or modify how a task is completed. Breaks can be short in duration, depending on the individual’s needs. Time used for breaks can be taken from already provided break time, lunch, or made up so there is not an impact on productivity.

But something all gnaws at you. You recall something in the ADA referring to a “Direct Threat”.  You initially think – uh, doesn’t a “Hulk” figure represent a Direct Threat? How does that play into things?

The term ‘direct threat’ means a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”  The EEOC regulations spell out this a bit further:

“The determination that an individual poses a ‘‘direct threat’’ shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (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.”

Suffice to say that Professor Hulk is unprecedented and there are people who worry that he’s a bit unhinged.  But ultimately, he assures you that his “Hulk” personality has mellowed and that he is really the best of both worlds — smart AND strong. He says that instead of his personalities fighting, they are now living in harmony.  Based on the most current medical knowledge, who are you to disagree?  After all, just your hunch that this might not work out isn’t enough to invoke the Direct Threat rule.

You think about it further. Professor Hulk seems to be a rock star. He’s taking selfies with students and his job performance is consistent. He even gives out autographs at restaurants.

Bottom line: If he needs a few rest breaks — give it to him.

What other employment issues are out there in Avengers: Endgame?

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