Disability accommodation job sharing positions not required by ADA

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The United States Court of Appeals for the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia, said in a notice published on June 8, 2021, that the Americans with Disabilities Act (“ADA”) does not require employers to create an entirely new position to accommodate an employee’s disability. Specifically, the Court ruled that a new part-time position the creation of which requires management approval is not a reasonable accommodation because the ADA does not require companies to create new positions for welcome their disabled employees.

In 2013, Janet Purdue, a longtime sales representative for a large international pharmaceutical company, was diagnosed with antisynthetase syndrome, a chronic autoimmune disease. That same year, Ms. Perdue underwent brain surgery to remove a tumor that was affecting her eyesight and movement, and subsequently took ten months of leave. When Ms. Perdue returned to work, she was assigned a job sharing position in her original sales territory, where she was working at 60% of her capacity. Ms Perdue eventually returned to a full-time job and, in 2017, was reassigned to a territory that required four hours of daily commuting.

Unfortunately, Ms. Perdue’s illness, combined with the high volume of travel required from a full-time pharmaceutical sales representative, led to her developing unmanageable joint pain and stiffness. Ms Perdue’s doctor informed her that although she had already been able to work full-time, she could not return to work full-time under the circumstances and should therefore explore part-time options. Shortly thereafter, Ms. Perdue inquired about a permanent job-sharing position where she and another representative would share sales and travel for a territory. Her employer’s policy at the time regarding handling flexible work arrangements such as job sharing stated that positions were “available for discussion between employers and their managers”, but ultimately required manager approval.

After reviewing Ms. Perdue’s proposal, the Territory Manager decided that creating a job-sharing position was not in the best interests of the company and offered Ms. Perdue alternative accommodation. travels to her current position to help manage her pain and stiffness (which she declined). Shortly thereafter, Ms. Perdue was put on long-term sick leave and ultimately her job was terminated. In 2018, Ms Perdue filed a complaint in the Western District of North Carolina, alleging, among other things, that her employer failed to account for his autoimmune disease in violation of the ADA when he refused. reassign it to a shared workstation. The district court allowed her employer’s motion for summary judgment on all of the claims, stating in particular that Ms Perdue’s ADA claim was based on the fact that the job sharing position was not vacant and therefore was not available for accommodation.

On appeal, the Fourth Circuit upheld the district court’s decision, but said Ms Perdue’s ADA request was based instead on the position not being to exist, because “a post can only be vacant if it already exists”. The Court explained that while the ADA’s definition of reasonable accommodation is broad, it does not require an employer to create a new job sharing position.

It is well established that the ADA prohibits employers from discriminating against qualified persons on the basis of disability. It is also well established that the ADA requires employers to engage in an interactive process with an employee with a disability to determine whether they can provide the employee with reasonable accommodation that will enable them to perform the essential duties of the employee. his position, provided that the accommodation does not constitute undue hardship for the employer. Reasonable accommodations may include job restructuring, part-time or modified work schedules, or reassignment to a vacant position. However, the ADA does not require an employer to create a new position or transfer another employee to make a position vacant for the purpose of reassigning the disabled employee.

When Ms. Perdue applied for the permanent job-sharing position in 2017, there was only one full-time position in this territory. In a job-sharing scenario, two employees work part-time to fill a position, thereby necessarily creating an additional position. Thus, the accommodation she offered did not amount to reassignment to a vacant position. Instead, his accommodation request would require a manager’s agreement to reorganize the full-time position into two separate part-time positions, staffed by two employees, creating a fully part-time position that did not exist. not otherwise. The Court held that such an agreement is entirely discretionary and “is something that the ADA does not require” because it infringes on the basic management policies of a company. Notably, the Court ruled that the employer’s benevolence in previously allowing Ms. Perdue to participate in a job-sharing position when she was recovering from major brain surgery did not require her to create a new position. job sharing in this case because the former ’employer generosity and overall flexibility do not raise the legal standard.

The Fourth Circuit decision, in this case, is a reminder that while broad in its protections, the ADA has its limits, and employers can legally refuse to provide the accommodation requested by an employee, particularly if it would require them to create a new – a part-time position or a part-time job-sharing position where one does not already exist.

Squire Patton Boggs Summer Associate Sydney Finley contributed to this position.

© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 172

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