Must an employer permit an employee with a disability to job share if the employer has a flexible work policy that permits managers to create part-time job-sharing positions? The U.S. Court of Appeals for the Fourth Circuit recently answered that question in the negative.

In Perdue v. Sanofi-Aventis U.S., LLC, the plaintiff claimed that her employer failed to accommodate her disability when it rejected her request to share a colleague’s job. The employee pointed out that she had previously shared a job when recovering from surgery and that her coworker was a willing participant in the job share. The employee argued that the only effective accommodation for her condition was the job-sharing arrangement and rejected numerous alternatives offered by the employer.

Upholding summary judgment for the employer, the court noted that an employer’s duty to accommodate does not extend to creating a position, and as such, creating a job-share position is not a reasonable accommodation, even if the employer had created such positions in the past. While saluting the employer for its generous treatment of the plaintiff after her surgery, the court was unpersuaded that an employer’s previous generosity should redefine the standard for a reasonable accommodation. While taking heart, employers should bear in mind that, critical to this outcome, was the company’s flexible work policy describing how a new job-share position would be created and the employer’s active engagement in the “interactive process” efforts to identify an actual reasonable accommodation for the employee.