In order to claim discrimination under the Americans with Disabilities Act, employees must demonstrate that they could perform the essential functions of the job but were denied a reasonable accommodation. Some employers analyze the employee’s medical restrictions in terms of the job’s requirements and conclude that there are no reasonable or effective means by which the employee can perform that job. However, the ADA’s reasonable accommodation analysis requires one additional step. If the employee can no longer do his or her current job, is there an alternative position that they can perform?
Last month in Fisher v. Nissan North America, Inc., the Sixth Circuit Court of Appeals reversed dismissal of an ADA claim and remanded the matter for consideration of whether the employee should have been offered a transfer. After receiving a kidney transplant and a long leave of absence, the plaintiff was terminated following continuing struggles to meet the physical requirements of his prior position. He sued, claiming that Nissan should have allowed him to transfer to a considerably less demanding role. The Sixth Circuit agreed, remanding the claim for consideration of the reasonableness of this request.
The court overturned dismissal despite the employer’s strong evidence of having engaged in a thorough interactive process that concluded that the plaintiff was unable to stay in his old job. The company erred by failing to include in this process any documentation of consideration of alternative positions. The ADA does not require employers to create new jobs or to displace other workers. However, if the company has vacant available positions that meet the employee’s qualifications and medical abilities, he or she should be considered for those jobs as a final alternative to termination. If no such jobs are available at the time of this analysis, this fact should be included in the employer’s accommodation documentation.
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