What should you do if an employee becomes disabled and can’t perform the essential functions of his job under any circumstances? The employee may be entitled to a transfer to another position—if one is open and the employee is actually qualified for the position.
But you don’t have to move employees around to create an opening.
Recent case: Shawn Cooper worked for UPS for 17 years delivering packages. Then, in 2006, Cooper began to suffer from heat exhaustion, muscle spasms, dizziness and headaches while working.
He went to the doctor and was diagnosed with heatstroke, post-traumatic stress disorder and migraine headaches brought on by heat, depression and anxiety. (Cooper’s home in New Orleans had been destroyed by Hurricane Katrina, leading to anxiety and depression.)
Cooper went out on medical leave. His doctors said he could return to work only if he avoided any significant daily driving, excessive heat and humidity and high stress. Obviously, that eliminated driving a delivery truck in the South.
Cooper asked UPS to accommodate his disability by giving him a job in a climate-controlled environment close to his home. When UPS said it had none available, Cooper sued, alleging that the company should have found or created such a job as an ADA accommodation.
The 5th Circuit Court of Appeals dismissed the lawsuit. It reasoned that the ADA requires reassignment only to existing and open positions that the disabled employee is qualified to fill. The law doesn’t require employers to move other employees out of a potential position. Nor does it require that employers create new jobs that fit their disabled employees’ medical restrictions. (Cooper v. United Parcel Service, No. 09-30864, 5th Cir., 2010)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Court: EEOC paperwork foul-up doesn't cancel right to sue under N.C. law
- Track discipline by protected characteristics
- Good reviews, promotions are evidence you didn't discriminate
- After employee files internal complaint, beware anything that might look like retaliation