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, the Court held that the rotating shift was an essential function of the relevant job, and that therefore, the answer was No.
Terri Kallail was employed by Alliant Energy Corporate Services (AECS), and held the position of Resource Coordinator at a company Distribution Dispatch Center (DDC) in Cedar Rapids, Iowa. Employees at the DDC monitor the distribution of electricity, gas, and steam throughout a service area, and handle outages and other emergency situations to maintain the integrity of the systems. In order to provide adequate coverage, Coordinators at the DDC work in teams of two on 9-week schedules that rotate between 8- and 12-hour shifts, and between day and night shifts. The dual purposes of the rotating shifts were to provide adequate experience and training for the Coordinators, and to enhance non-work life by spreading the less desirable shifts among all Coordinators on a rotating basis.
Kallail is a Type I, insulin dependent diabetic. During the fall of 2004, she was having increased difficulties managing her diabetes while working the rotating shifts. In November of that year, her physician completed a medical certification that recommended that Kallail work only straight day shifts. That request was denied in a letter in which AECS stated that the Coordinator’s essential functions include rotating shifts to support operations 24 hours a day, 7 days a week to meet company safety requirements. However, as an alternative, AECS said that it would consider reassigning Kallail to a vacant position with a straight day shift. In August 2005, the company identified three such positions, all of which were rejected by Kallail, because one required walking, which she had difficulty with, one paid less than the Coordinator position, and the third would have required to her relocate or commute a significant distance.
In September 2005, Kallail took FMLA leave for surgery. While on leave, she applied for a position two job grades higher than the Coordinator position, and was unsuccessful. Kallail returned from leave in February 2006 with a restriction that she work only an 8-hour day shift schedule until May. At that point, AECS gave to Kallail a temporary light-duty assignment that was different from her Coordinator duties. When the light-duty assignment expired, Kallail’s physician again recommended that Kallail be permanently limited to straight day shifts to protect her from medial risks and complications in the future. Although AECS offered a number of other positions to Kallail, Kallail refused them and instead, began to receive long term disability benefits in January 2007.
She then filed a charge of discrimination with the EEOC, and ultimately filed a lawsuit, alleging that AECS failed to provide her with a reasonable accommodation. The district court granted summary judgment in favor of AECS, and that decision was upheld by the Eighth Circuit on appeal.
The American with Disabilities Act (ADA) makes it unlawful for a private employer to discriminate against any “qualified individual on the basis of a disability.” Discrimination under the ADA specifically includes failure to make a “reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.” To prove oneself to be a qualified individual under the ADA, an employee must have the requisite skill and training for the position, and must be able to perform the essential functions of the position with or without accommodation.
In reviewing the lower court’s dismissal of the case, the Eighth Circuit began by reviewing the issue of whether Kallail could perform the essential functions of her Coordinator position, with or without an accommodation – if she could not, she would be unable to prove herself to be a “qualified individual with a disability” who was entitled to the protections of the ADA.
The Court first determined that the rotating shift was an essential function of the Coordinator position. It found that AECS had included the rotating shift in its written job description, and that when the company had discussed with employees a proposal for creating two permanent straight day shift positions, employees objected. (Avoiding employee complaints and maintaining morale are legitimate reasons for a company’s scheduling decision.) Further, because courts allow companies to determine the most productive or efficient shift schedule for a facility, the Eighth Circuit determined that AECS’s designation of the rotating shift schedule as a critical element of the Coordinator position made that schedule an essential function of the position. Because Kallail could not work a rotating shift, she was unable to fulfill the essential function of her job without an accommodation.
The Eighth Circuit then looked at whether Kallail could do the job with an accommodation. To show that such was possible, Kallail would have to proffer a reasonable accommodation that would allow her to perform the essential functions of the job. The reasonable accommodations proffered by Kallail were the straight day shift, and the promotion to a higher grade day-shift job. The Court began by pointing out that while job restructuring is a possible accommodation under the ADA, an employer does not have to “reallocate or eliminate the essential functions of a job to accommodate a disabled employee.” Therefore, Alliant did not have to allow Kallail to work the straight day shift that she requested. Next, the Court stated that “reassignment to a vacant position may be a reasonable accommodation.” Because Alliant offered a number of positions to Kallail, and Kallail did not provide evidence that the positions were inferior, or that a more suitable job was vacant, there was no requirement that Alliant provide a promotion to put Kallail into a day-shift job.
This case is an important one for employers because the company in this situation provided a number of opportunities to allow Kallail to return to work under circumstances that made allowance for her impairment. Further, it had a detailed written job description that spelled out the essential functions of the job, precluding any dispute on that issue. Finally, it engaged in the required interactive process by working with Kallail to try to identify other positions that were available and for which she was qualified. Kallail’s unwillingness to accept those positions absolved AECS from liability in this circumstance.
Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins. To read other case summaries and legislative updates, visit Maria’s blog at www.employmentlawmatters.net