Category Archives: Reasonable accommodation

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“Reasonable accommodation” may include adjustments to work schedule, even beyond an agreed-upon flex-time schedule.

Employers are aware of the fact that the Americans with Disabilities Act (ADA) requires them to engage in an interactive process in order to determine whether a disabled individual can be accommodated to assist him or her in performing the essential functions of a job. In determining the essential functions of a position, most employers … Continue Reading

Employer has no obligation to provide “light duty” assignment under FMLA or ADA.

The use of light duty assignments to employees who are returning to work after recuperation from an illness or injury is an often used mechanism. The 7th U.S. Circuit Court of Appeals has held that neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) creates an obligation for an … Continue Reading

Employer not obligated to make an otherwise temporary “light-duty” position permanent to accommodate disabled employee under the ADA.

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who refused to convert a light-duty position into a permanent job for a disabled employee.  Wardia v. Campbell County Regional Justice Dept. of Corrections, 6th Cir., No. 12-5337, January 3, 2013. In that case, a … Continue Reading

Employer’s reliance on third party assessment to determine reasonable accommodation may lead to ADA liability.

The 6th U.S. Circuit Court of Appeals recently addressed an issue of first impression, finding that the ability to hear is not necessarily an “essential function” of the job of lifeguard. Keith v. County of Oakland, 6th Cir., No. 11-2276, January 10, 2013. In addition, however, the Court made a number of other, more generally … Continue Reading

Employee’s request to move from rotating shift to straight shift not a “reasonable accommodation” under the ADA.

The 8th U.S. Circuit Court of Appeals recently addressed an issue of concern frequently raised by employers: whether allowing an employee to move from rotating shifts to straight daytime work is a required “reasonable accommodation” under the ADA. Kallail v. Alliant Energy Corporate Services, Inc., 8th Cir., No. 11-2202, September 4, 2012. In that case, … Continue Reading

An indefinite exemption from the essential functions of a job is not a reasonable accommodation under the ADA.

An issue that confounds employers on a regular basis is whether the discharge of an employee who is unable to return to work after a medical leave will violate the American with Disabilities Act (ADA). Most employers understand their obligation to engage in an interactive process to determine a reasonable accommodation that will assist the … Continue Reading

Seventh Circuit underscores a circuit split on preferential reassignment of disabled individuals to open positions.

The Federal Circuits currently are split on the issue of whether the ADA requires reassignment of disabled employees to vacant positions when a more qualified candidate exists, with the 10th Circuit and the District of Columbia Circuit holding that the ADA creates preferential treatment for disabled candidates, and the 7th and 8th Circuits holding that … Continue Reading

Employee’s inability to work overtime is not a per se disability under the ADA.

The 4th U.S. Court of Appeals has dismissed an employee’s lawsuit, holding that the individual’s inability to work overtime hours was not a substantial limitation that would entitle him to the protections of the Americans with Disabilities Act (ADA). Boitnott v. Corning Incorporated, 4th Cir., No. 10-1769, February 10, 2012. Michael Boitnott, an employee of … Continue Reading

OFCCP’s proposed revisions to regs require increased obligations and affirmative action regarding disabled individuals.

Section 503 of the Rehabilitation Act of 1973, as amended ("Section 503"), prohibits employment discrimination by federal government contractor and subcontractor employers against individuals with disabilities. It also includes affirmative action provisions that relate to both hiring and advancement of disabled individuals by those same employers. The provisions of Section 503 apply to government contractors … Continue Reading

High school diploma as pre-requisite to employment may violate the ADA.

On December 2, 2011, the EEOC posted an “informal discussion letter” on its website. The letter was in response to an issue involving individuals who are unable to earn a high school diploma because of certain learning disabilities and who therefore are ineligible for jobs that require a high school education. According to the EEOC, … Continue Reading

Plaintiff must request an accommodation that allows him to perform the essential functions of the job in order to support ADA claim.

A medical resident with Asperger’s Disorder was unable to meet his burden, in his ADA lawsuit against his hospital employer, that he was “otherwise qualified” for his position. The 6th U.S. Circuit Court of Appeals upheld summary judgment in favor of the hospital, because the resident’s requested accommodation – that the hospital physician and staff … Continue Reading

Alleging that employer views an individual as disabled from doing one type of job is not sufficient to support a “regarded as” argument under the ADA.

The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities, or being “regarded” as having such impairment. In order to support a “regarded as” claim under the ADA, an individual has to show that the perceived impairment limited a major life activity and that the limitation … Continue Reading

Under the ADAAA, individual with episodic disability does not have to be “substantially limited” at the time of complained-of adverse action.

The ADA Amendments Act of 2008 (ADAAA) clarified the ADA in a number of ways. In one significant clarification, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Based upon that wording, a federal district court in the … Continue Reading

Third Circuit says accommodation may include shift change that assists with commute to work.

In an unusual case of first impression, the 3d U.S. Circuit Court of Appeals has held that under certain circumstances, the ADA may obligate an employer to accommodate an employee’s disability-related difficulties in getting to work. In that case, the Court reversed summary judgment in favor of an employer and held that changing a part-time … Continue Reading

Medical intern unable to perform the essential functions of a first-year resident could not support ADA claim.

A medical intern who misdiagnosed patients (including mistakenly identifying a patient as deceased), prescribed inappropriate medications or incorrect dosages, and who was “extremely argumentative” with his supervisors and co-workers was unable to perform the essential functions of his job and therefore, according to the 4th U.S. Circuit Court of Appeals, was not a qualified individual … Continue Reading

Fear of potential violence by an impaired employee can be a legitimate non-discriminatory reason for termination.

Under the Americans with Disabilities Act and parallel state statutes, an employer cannot take an adverse action against an employee because of that person’s disability or perceived disability. However, an employer is justified in taking such action if the action is based upon a legitimate business reason, and if that reason is not simply a … Continue Reading

Leave of absence taken in order to recover from a disability is not necessarily a “reasonable accommodation” under the ADA.

In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee who requested a leave of absence to consult an orthopedic surgeon was unable to prove that the absence would allow him to perform the essential functions of his position. Therefore, the absence was not a "reasonable accommodation" for purposes … Continue Reading

Disabled employees must provide corroborating evidence of non-obvious, medically necessary accommodations.

Under the Americans with Disabilities Act, employers and employees are required to engage in an interactive process with respect to a disabled employee’s request for a reasonable accommodation. In cases of psychological disability – depression, for example – necessary accommodations may be non-obvious to the employer. In those cases, courts have held that in order … Continue Reading

ADA’s interactive process may require plaintiff to identify open position for transfer.

As defined under the Americans with Disabilities Act (ADA), the term “discriminate” includes an employer’s failure to make reasonable accommodations to the limitations of a disabled employee. Reasonable accommodation may include reassignment to a vacant position within the company. The 10th U.S. Circuit court of Appeals recently held that a disabled employee could not support … Continue Reading

Request for an indefinite leave of absence is not a reasonable accommodation under the ADA.

The 8th U.S. Circuit court of Appeals has upheld summary judgment in favor of an employer who terminated the employment of an individual undergoing cancer treatment. Peyton v. Fred’s Stores of Arkansas, Inc., 8th Cir., No. 08-2346, April 15, 2009. In that case, the Court held that because there was no reasonable accommodation that would … Continue Reading
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