It’s up to the employer to choose which ADA reasonable accommodation it wants to offer a disabled employee. If the worker wants a different accommodation, he’s out of luck.
Follow through after meeting with the employee by offering in writing your chosen accommodation. If the employee refuses the offer or doesn’t show up for the new assignment, you can terminate him.
Recent case: Joseph had worked as a painter at a prison for more than 15 years, with informal accommodations for some medical problems. Then his condition changed and he had to undergo a fitness-for-work examination. Doctors concluded that Joseph couldn’t perform an essential function of his job: standing on ladders, scaffolding and roofs while painting.
Joseph argued that he had been accommodated in the past by having another painter help him. Sometimes, prisoners had been assigned to paint high walls and ceilings.
However, HR offered him a different accommodation—an assignment to a lab job that didn’t require any painting, climbing or other prohibited work. It did, however, pay less. Joseph received the new assignment but didn’t show up for work. He was then terminated for job abandonment.
Joseph sued, alleging failure to accommodate.
The court dismissed his case. It pointed out that it’s up to the employer to choose the accommodation. If it’s reasonable, the employee must accept it and can’t sue just because it wasn’t his preferred accommodation. (Garcia v. California Department of Corrections and Rehabilitation, No. D063346, Court of Appeal of California, 2015)
Final note: Be sure to document your reasonable accommodations discussions. Start with a list of essential functions and see what changes you can make to allow the employee to do the job (or another open position) within his medical restrictions.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- EEOC sues FedEx for bias against hearing-impaired staff
- Courts won't hear it: Don't try piling on after-the-fact reasons for termination
- Worry about disciplinary inequities from one supervisor, not every boss
- Tell supervisors: Absolutely no ethnic comments allowed