Fourth Circuit Says Employer Not Required to Create Shared Job as ADA Accommodation

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

Under the Americans with Disabilities Act, employers are required to consider reassignment to an existing vacant position as a last ditch form of reasonable accommodation for an employee unable to return to their previous job. Last week, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) issued a decision that explores the extent of this accommodation obligation.

In Perdue v. Sanofi-Aventis U.S., LLC, the plaintiff was a sales representative with an autoimmune disorder that eventually restricted the amount of time she worked and travel distance from home. Prior to these last restrictions, the employer had accommodated her by allowing her to job share with a co-worker. When the travel restrictions required her transfer to a different territory, that manager denied a proposed job sharing arrangement, even though the plaintiff’s co-worker agreed to the proposal. After the employer terminated the plaintiff based on her inability to work, she sued, claiming failure to accommodate under the ADA.

The Fourth Circuit affirmed the district court’s dismissal of the case. The court reminded the parties that the ADA’s reassignment obligation only applies to position that are both vacant and existing. While the district court focused on the lack of a vacant position for the plaintiff, the Fourth Circuit concluded that the proposed reassignment was not to an existing position. The territory in question had one full-time sales position. In order for there to be an available job shared position, the territory manger would have had to agree to create one in the first place. The co-worker’s willingness to share the job did not affect this analysis.

In this decision, the Fourth Circuit narrowed situations under which employers must consider reassignment. In essence the requested job must be one that basically exists as is. While the disabled employee may request accommodations to allow them to perform this job, they cannot mandate basic changes to the job or essential job functions.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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