Update on Americans With Disabilities Act
2000-01/12 Dean R. Dietrich

Many employers are struggling with the vague provisions of the Americans with Disabilities Act (the "Act") and are trying to determine exactly what steps they must take as employers to comply with the Act. As employers attempt to discern how best to follow the requirements of the Act without losing the right to make management decisions for the best interests of the company, a number of the following questions arise:

Must an employer reassign an employee with a disability to a vacant position as a reasonable accommodation?

Court decisions have clarified that an employer is not obligated to create a position for an employee who suffers a disability and can no longer perform the essential functions of his or her job. The employer must, however, make certain that the employee cannot perform the essential functions of the job before considering what type of accommodation must be made in the form of a job reassignment or transfer.

Courts have also held that an employer must consider the reassignment of the employee to a vacant position as a reasonable accommodation if the employee becomes disabled and can no longer perform the essential functions of the job he or she previously held. Reassignment to a vacant position is considered a reasonable accommodation under the Act, although it may not be required in every instance.

Whether a reassignment is required will depend on the particular facts of the situation. It is clear that an employer is not obligated to create a new position or to "bump" another employee out of a position for the disabled employee. The employer is also not obligated to transfer an employee to a vacant position if such a transfer would pose an undue hardship on the business. However, the undue hardship test will be difficult to meet if the employee can show that he or she is qualified to perform the duties of the vacant position. In addition, an employer is always obligated to conduct interactive process with the employee to determine what type of accommodations are necessary for the employee to continue to perform his or her current position or to consider reassignment to a vacant position.

Must an employer give a disabled employee the opportunity (or right of first refusal) for any positions that become vacant in the near or distant future?

Courts have clearly held that an employer must consider all vacant positions when determining the possibility of reassignment for a disabled employee. However, an open question remains regarding whether the employer must give the employee first consideration for future vacant positions if he or she is unable to meet the qualifications of any then vacant positions.

Must an employer grant a disabled employee's request for a flexible work schedule as a reasonable accommodation?

In many instances, the employee requests a flexible work schedule in order to accommodate the conditions resulting from a disability. Employers are reluctant to approve a flexible work schedule because it often interferes with production requirements for the business. Courts have held that a flexible work schedule can be required as a reasonable accommodation and may only be denied by the employer if good business reasons exist to refuse the employee's request for a different or flexible work schedule.

One of the best reasons for an employer to refuse a flexible work schedule is that customers or other employees are dependent upon the disabled employee's attendance during regular work hours in order for the business operation to proceed. However, if there is no reason why other employees or customers require a particular employee to work certain hours, the employer will have a more difficult time arguing that punctuality and regular work hours are an essential requirement of the job.

Several recent Court decisions have considered the steps taken by the employer to ensure that punctuality and working regular work hours was an important requirement for employees. In instances where the employer was diligent in enforcing rules on reporting late to work and clearly telling employees that particular hours will be required, the employer has been successful in showing that punctuality is an essential function of the job and that a flexible schedule would not be a reasonable accommodation.

Courts have also held that an essential job function can include the requirement to work overtime if it can be shown that this is necessary to get a job completed on a timely basis. In these circumstances, if the employer has made a job requirement of mandatory overtime, the employer may be able to limit the request for a reasonable accommodation of only working eight hours and only working hours when the disabled employee feels able to report to work. If the employer can show that a standard work schedule is necessary for all employees and for all positions within the company, the employer can avoid potential problems associated with modifying a work schedule to accommodate a disabled employee.

Must an employer continue the employment of an individual with a disability if the disability causes the employee to pose a threat to his or her safety when continuing to work for the company?

The Americans with Disabilities Act provides an exception to the reasonable accommodation requirement if the employer can show that the employee would pose a direct threat to the health and safety of other employees or customers of the business. Although an employee may pose a direct threat to the health or safety of himself or herself, employers may not be able to show that an employee poses a direct threat to the health and safety of others.

Several court decisions have held that an employer does not have a defense under the Act to a claim based on the argument that the disabled employee, by continued employment, poses a direct threat to himself or herself. Thus, the employer is obligated to accommodate the disabled employee even though he or she will pose a threat to himself or herself by continuing to work for the employer. The direct threat to health and safety defense to an obligation to provide an accommodation only applies to a direct threat to the health and safety of others (whether employees or customers), but does not apply to the employee alone. Thus, an employee who may pose a direct threat to himself or herself due to a back condition, but who does not pose a direct threat to the health and safety of others, will likely be a candidate for a reasonable accommodation by the employer.

Employers continue to struggle with the interpretation of the Americans with Disabilities Act. Court cases have generated varied interpretations of the employer's obligations under the reasonable accommodation standard. The recent trend in Court decisions appears to place a greater burden on the employer to make a reasonable accommodation for a disabled employee.

© 2000 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
This document provides information of a general nature regarding legislative or other legal developments. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed.