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Accommodation process limited to current, open positions

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in Employment Law,Human Resources

The ADA requires employers to make reasonable accommodations for disabled workers. That can mean modifying the employee’s existing job so he or she can perform the essential functions.

But disabilities can change over time, and an accommodation that’s worked for years may stop working. If that’s the case, the disabled employee and his employer are both obligated to engage in another interactive accommodations process. The goal: Find common ground that meets the disabled employee’s needs and the employer’s legitimate business needs.

However, if the discussions reveal that no amount of accommodation will allow the employee to do the job satisfactorily, it’s time to look for other solutions. They can include reassignment to an open position, but you aren’t required to create a new job for the employee.

Recent case: James McPherson worked for O’Reilly Automotive as an assistant sales manager. All went well until McPherson hurt his back at work. He went on medical leave and received workers’ comp a few months later. Meanwhile, the company reassigned his job duties to another employee.

A few months later, McPherson underwent back surgery. He recovered enough to be released for work but with stringent, permanent restrictions, including no prolonged sitting or standing, and no lifting.

Because his former position had been filled and no other suitable jobs were open, he was let go.

McPherson filed an ADA suit, alleging that the company was required to create a job that met his restrictions. But the court disagreed. While the company may be required to offer disabled employees an open position as a reasonable accommodation, it isn’t required to create an entirely new job. (McPherson v. O’Reilly Automotive, No. 06-3846, 8th Cir., 2007) 

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