The Americans with Disabilities Act requires employers to make reasonable accommodations to the known mental or physical limitations of an otherwise qualified individual. The Act defines a qualified individual as someone who, with or without accommodation, “can perform the essential functions of the employment position that such individual holds or desires.” Furthermore, the Act defines reasonable accommodation to include “job restructuring” and “part-time or modified work schedules.”
As you can see, in reconciling these provisions there is some tension between an employment position which an individual holds or desires, which implies an existing employment position, and job restructuring or modified work schedules, which implies a position which does not presently exist in that form. The federal courts have ruled that reasonable accommodation does not include transfer to a new position unless such a position exists and is open and available when accommodation is sought, nor does reasonable accommodation include an obligation to create a new position.
So the question becomes, what is the limit of reasonable accommodation, where changes in the functions of the job are not merely job restructuring or work schedule modification but rather amount to the creation of a new job which the employer previously did not want or need.
This blog has previously discussed modification of a work schedule by allowing tardiness as a reasonable accommodation [How Important Is Attendance At Work? June 23, 2014]. A recent decision of the Connecticut Superior Court at Waterbury discusses the concept of a part-time schedule. In Brown v. Oxford Board of Education, the plaintiff was a teacher who had been diagnosed with a chronic disease which prevented her from teaching a full-time case load. All of the teachers in her department, including her, were full-time teachers, but she requested a shorter, part-time schedule with reduced work hours.
On a motion for summary judgment, the school board argued that this request was not an accommodation, but really amounted to the elimination of the existing job and creation of a new part-time position. The plaintiff responded that other teachers could absorb part of her workload, so that the change was actually a modified work schedule (although apparently for other teachers as well as the plaintiff). The ADA provides that the employer’s judgment should be considered in determining the essential functions of a job, but the court held that in this case the employer’s judgment was not convincing and denied summary judgment. It will now be a jury’s judgment as to whether the requested change was a reasonable accommodation.
For good measure, the court also decided to allow a jury to determine if the school board had properly engaged in the interactive process [What is the Interactive Process?, July 29, 2014]. The takeaway here for employers is that even an accommodation request that seems to seek the creation of a new job cannot be dismissed out of hand. It must be considered and discussed with the employee and perhaps with other employees as well, so that a denial of the request can be justified to a judge or jury of the employee’s peers.