Not every disability can be accommodated in a way that enables an employee to perform the essential functions of his job. Sometimes, the disability simply can’t be accommodated. When that’s the case, you may terminate the employee.
If he sues, you must be ready to show what the job’s essential functions are and that it simply isn’t possible for the disabled employee, given his specific disabilities, to perform those functions.
Recent case: Jonathan accepted a job with Crossroads Utility Services as a wastewater operator.
The job required a license, which he obtained, and a 90-day probationary period. It also required employees to work outside in the hot Texas sun during the day.
At first, that wasn’t a problem even though Jonathan has plaque psoriasis, a skin condition. But then he was diagnosed with lupus. His doctors told him that he absolutely had to avoid sun exposure or else risk serious complications, including skin cancer.
Jonathan told his supervisors that he might have to find another job, explaining his new diagnosis. He asked for a transfer to a night shift or a desk job and began wearing potent sunscreen, wide-brimmed hats and long-sleeve shirts while working. His supervisors told him he could work out his probation unless they found a replacement earlier.
Jonathan then asked Crossroads to create a night shift, but the company said it had no need for a full-time night operator. There were also no open desk jobs.
It found a replacement and Jonathan was terminated. He sued, alleging failure to accommodate.
The court tossed out the case. It reasoned that being in the sun was an essential function and that no accommodation was possible since Jonathan’s doctors made it clear that wearing a shirt and hat were only temporary fixes. Crossroads wasn’t required to create a new job or let Jonathan displace another employee to accommodate his needs. (Jordan v. Crossroads Utility Services, No. 1:14-CV-373, WD TX, 2015)
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- Document all efforts to accommodate disabled workers
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